In a bifurcated trial in a Georgia state court, a jury found
respondent guilty of murder and imposed the death penalty. At the
sentencing phase of the trial, the judge instructed the jury that
it was authorized to consider all of the evidence received during
the guilt phase of the trial as well as all facts and circumstances
presented in mitigation or aggravation during the sentencing
proceeding, and that it must find and designate in writing the
existence of one or more specified statutory aggravating
circumstances in order to impose the death penalty. The jury stated
in writing that it found the statutory aggravating circumstances
that respondent had a prior conviction of a capital felony, that he
had "a substantial history of serious assaultive criminal
convictions," and that the murder was committed by an escapee.
While respondent's appeal was pending, the Georgia Supreme Court
held in another case that one of the aggravating circumstances --
"substantial history of serious assaultive criminal convictions" --
was unconstitutionally vague. In respondent's case, the Georgia
Supreme Court held that the two other aggravating circumstances
adequately supported the sentence. After the Federal District Court
denied respondent's petition for habeas corpus, the Court of
Appeals held that respondent's death penalty was invalid. In
response to this Court's certified question,
Zant v.
Stephens, 456 U. S. 410, the
Georgia Supreme Court explained the state law premises for its view
that the failure of one aggravating circumstance does not
invalidate a death sentence that is otherwise adequately supported
by other aggravating circumstances. Under Georgia law, the finding
of a statutory aggravating circumstance serves a limited purpose --
it identifies those members of the class of persons convicted of
murder who are eligible for the death penalty, without furnishing
any further guidance to the jury in the exercise of its discretion
in determining whether the death penalty should be imposed.
Held:
1. The limited function served by the jury's finding of a
statutory aggravating circumstance does not render Georgia's
statutory scheme invalid under the holding in
Furman v.
Georgia, 408 U. S. 238.
Under Georgia's scheme, the jury is required to find and identify
in writing at least one valid statutory aggravating circumstance,
an individualized
Page 462 U. S. 863
determination must be made on the basis of the defendant's
character and the circumstances of the crime, and the State Supreme
Court reviews the record of every death penalty proceeding to
determine whether the sentence was arbitrary or disproportionate.
The narrowing function of statutory aggravating circumstances was
properly achieved in this case by the two valid aggravating
circumstances upheld by the Georgia Supreme Court, because these
two findings adequately differentiate this case in an objective,
evenhanded, and substantively rational way from the many Georgia
murder cases in which the death penalty may not be imposed.
Moreover, the Georgia Supreme Court reviewed respondent's death
sentence to determine whether it was arbitrary, excessive, or
disproportionate. Thus the Georgia capital sentencing statute is
not invalid as applied here. Pp.
462 U. S.
873-880.
2.
Stromberg v. California, 283 U.
S. 359, does not require that respondent's death
sentence be vacated.
Stromberg requires that a general
guilty verdict be set aside if the jury was instructed that it
could rely on any of two or more independent grounds, and one of
those grounds is insufficient, because the verdict may have rested
exclusively on the insufficient ground. In this case, however, the
jury did not merely return a general verdict stating that it had
found at least one aggravating circumstance, but instead expressly
found two aggravating circumstances that were valid and legally
sufficient to support the death penalty. Nor is a second rule
derived from
Stromberg -- requiring that a general guilty
verdict on a single-count indictment or information be set aside
where it rests on both a constitutional and an unconstitutional
ground -- applicable here. There is no suggestion that any of the
aggravating circumstances involved any conduct protected by the
Constitution. Pp.
462 U. S.
880-884.
3. Respondent's death sentence was not impaired on the asserted
ground that the jury instruction with regard to the invalid
statutory aggravating circumstance may have unduly affected the
jury's deliberations. Although the aggravating circumstance was
struck down by the Georgia Supreme Court because it failed to
provide an adequate basis for distinguishing a murder case in which
the death penalty may be imposed from those cases in which such a
penalty may not be imposed, the underlying evidence as to
respondent's history of serious assaultive criminal convictions was
fully admissible under Georgia law at the sentencing phase of the
trial. Pp.
462 U. S.
884-891.
631 F.2d 397 and 648 F.2d 446, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACKMUN, POWELL, and O'CONNOR, JJ., joined.
WHITE, J., filed an opinion concurring in part and concurring in
the judgment,
Page 462 U. S. 864
post, p.
462 U. S. 891.
REHNQUIST, J., filed an opinion concurring in the judgment,
post, p.
462 U. S. 893.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
462 U. S.
904.
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether respondent's death penalty
must be vacated because one of the three statutory aggravating
circumstances found by the jury was subsequently held to be invalid
by the Supreme Court of Georgia, although the other two aggravating
circumstances were specifically upheld. The answer depends on the
function of the jury's finding of an aggravating circumstance under
Georgia's capital sentencing statute, and on the reasons that the
aggravating circumstance at issue in this particular case was found
to be invalid.
In January, 1975, a jury in Bleckley County, Georgia, convicted
respondent of the murder of Roy Asbell and sentenced him to death.
The evidence received at the guilt phase of his trial, which
included his confessions and the testimony of a number of
witnesses, described these events: on August 19, 1974, while
respondent was serving sentences for several burglary convictions
and was also awaiting trial for escape, he again escaped from the
Houston County Jail. In the next two days, he committed two auto
thefts, an armed robbery, and several burglaries. On August 21st,
Roy Asbell interrupted respondent and an accomplice in the course
of burglarizing the home of Asbell's son in Twiggs County.
Respondent
Page 462 U. S. 865
beat Asbell, robbed him, and, with the aid of the accomplice,
drove him in his own vehicle a short distance into Bleckley County.
There they killed Asbell by shooting him twice through the ear at
point blank range.
At the sentencing phase of the trial, the State relied on the
evidence adduced at the guilt phase, and also established that
respondent's prior criminal record included convictions on two
counts of armed robbery, five counts of burglary, and one count of
murder. Respondent testified that he was "sorry," and knew he
deserved to be punished, that his accomplice actually shot Asbell,
and that they had both been "pretty high" on drugs. The State
requested the jury to impose the death penalty, and argued that the
evidence established the aggravating circumstances identified in
subparagraphs (b)(1), (b)(7), and (b)(9) of the Georgia capital
sentencing statute. [
Footnote
1]
The trial judge instructed the jury that, under the law of
Georgia, "every person [found] guilty of Murder shall be punished
by death or by imprisonment for life, the sentence to be fixed by
the jury trying the case." App. 18. He explained that the jury was
authorized to consider all of the evidence
Page 462 U. S. 866
received during the trial, as well as all facts and
circumstances presented in extenuation, mitigation, or aggravation
during the sentencing proceeding. He then stated:
"You may consider any of the following statutory aggravating
circumstances which you find are supported by the evidence. One,
the offense of Murder was committed by a person with a prior record
of conviction for a Capital felony, or the offense of Murder was
committed by a person who has a substantial history of serious
assaultive criminal convictions. Two, the offense of Murder was
outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind or an aggravated battery to the
victim. Three, the offense of Murder was committed by a person who
has escaped from the lawful custody of a peace officer or place of
lawful confinement. These possible statutory circumstances are
stated in writing and will be out with you during your
deliberations on the sentencing phase of this case. They are in
writing here, and I shall send this out with you. If the jury
verdict on sentencing fixes punishment at death by electrocution,
you shall designate in writing, signed by the foreman, the
aggravating circumstances or circumstance which you found to have
been proven beyond a reasonable doubt. Unless one or more of these
statutory aggravating circumstances are proven beyond a reasonable
doubt, you will not be authorized to fix punishment at death.
[
Footnote 2]"
The jury followed the court's instruction and imposed the death
penalty. It designated in writing that it had found the aggravating
circumstances described as "One" and "Three" in the judge's
instruction. [
Footnote 3] It
made no such finding with respect
Page 462 U. S. 867
to "Two." [
Footnote 4] It
should be noted that the jury's finding under "One" encompassed
both alternatives identified in the judge's instructions and in
subsection (b)(1) of the statute -- that respondent had a prior
conviction of a capital felony and that he had a substantial
history of serious assaultive convictions. These two alternatives
and the finding that the murder was committed by an escapee are
described by the parties as the three aggravating circumstances
found by the jury, but they may also be viewed as two statutory
aggravating circumstances, one of which rested on two grounds.
In his direct appeal to the Supreme Court of Georgia, respondent
did not challenge the sufficiency of the evidence supporting the
aggravating circumstances found by the jury. Nor did he argue that
there was any infirmity in the statutory definition of those
circumstances. While his appeal was pending, however, the Georgia
Supreme Court held in
Arnold v. State, 236 Ga. 534,
539-542,
224 S.E.2d
386, 391-392 (1976), that the aggravating circumstance
described in the second clause of (b)(1) -- "a substantial history
of serious assaultive criminal convictions" -- was
unconstitutionally vague. [
Footnote
5] Because such a finding had been made by the jury in this
case, the Georgia Supreme Court, on its own motion,
Page 462 U. S. 868
considered whether it impaired respondent's death sentence. It
concluded that the two other aggravating circumstances adequately
supported the sentence.
Stephens v. State, 237 Ga. 259,
261-262,
227 S.E.2d
261, 263,
cert. denied, 429 U.S. 986 (1976). The state
court reaffirmed this conclusion in a subsequent appeal from the
denial of state habeas corpus relief.
Stephens v. Hopper,
241 Ga. 596, 603-604,
247 S.E.2d 92,
97-98,
cert. denied, 439 U.S. 991 (1978). [
Footnote 6]
After the Federal District Court had denied a petition for
habeas corpus, the United States Court of Appeals for the Fifth
Circuit considered two constitutional challenges to respondent's
death sentence. 631 F.2d 397 (1980). That court first rejected his
contention that the jury was not adequately instructed that it was
permitted to impose life imprisonment, rather than the death
penalty, even if it found an aggravating circumstance. [
Footnote 7] The court then held,
however, that the death penalty was invalid because one of the
aggravating circumstances found by the jury was later held
unconstitutional.
The Court of Appeals gave two reasons for that conclusion.
First, it read
Stromberg v. California, 283 U.
S. 359 (1931), as requiring that a jury verdict based on
multiple grounds be set aside if the reviewing court cannot
ascertain
Page 462 U. S. 869
whether the jury relied on an unconstitutional ground. The court
concluded:
"It is impossible for a reviewing court to determine
satisfactorily that the verdict in this case was not decisively
affected by an unconstitutional statutory aggravating circumstance.
The jury had the authority to return a life sentence even if it
found statutory aggravating circumstances. It is possible that,
even if the jurors believed that the other aggravating
circumstances were established, they would not have recommended the
death penalty but for the decision that the offense was committed
by one having a substantial history of serious assaultive criminal
convictions, an invalid ground."
631 F.2d at 406. Second, it believed that the presence of the
invalid circumstance "made it possible for the jury to consider
several prior convictions of [respondent] which otherwise would not
have been before it."
Ibid.
In a petition for rehearing, the State pointed out that the
evidence of respondent's prior convictions would have been
admissible at the sentencing hearing even if it had not relied on
the invalid circumstance. [
Footnote
8] The Court of Appeals then modified its opinion by deleting
its reference to the possibility that the jury had relied on
inadmissible evidence. 648 F.2d 446 (1981). It maintained, however,
that the reference in the instructions to the invalid circumstance
"may have unduly directed the jury's attention to his prior
convictions."
Ibid. The court concluded:
"It cannot be determined with the degree of certainty required
in capital cases that the instruction did not make a critical
difference in the jury's decision to impose the death penalty."
Ibid.
Page 462 U. S. 870
We granted Warden Zant's petition for certiorari, 454 U.S. 814
(1981). The briefs on the merits revealed that different state
appellate courts have reached varying conclusions concerning the
significance of the invalidation of one of multiple aggravating
circumstances considered by a jury in a capital case. [
Footnote 9] Although the Georgia
Supreme Court had consistently stated that the failure of one
aggravating circumstance does not invalidate a death sentence that
is otherwise adequately supported, [
Footnote 10] we concluded that an exposition of the state
law premises for that view would assist in framing the precise
federal constitutional issues presented by the Court of Appeals'
holding. We therefore sought guidance from the Georgia Supreme
Court pursuant to Georgia's statutory certification procedure.
Ga.Code § 24-4536 (Supp.1980).
Zant v. Stephens,
456 U. S. 410
(1982). [
Footnote 11]
In its response to our certified question, the Georgia Supreme
Court first distinguished
Stromberg as a case in which the
jury might have relied exclusively on a single invalid ground,
noting that the jury in this case had expressly relied on valid and
sufficient grounds for its verdict. The court then explained the
state law premises for its treatment of aggravating circumstances
by analogizing the entire body of Georgia law governing homicides
to a pyramid. It explained:
"All cases of homicide of every category are contained within
the pyramid. The consequences flowing to the
Page 462 U. S. 871
perpetrator increase in severity as the cases proceed from the
base to the apex, with the death penalty applying only to those few
cases which are contained in the space just beneath the apex. To
reach that category, a case must pass through three planes of
division between the base and the apex."
"The first plane of division above the base separates from all
homicide cases those which fall into the category of murder. This
plane is established by the legislature in statutes defining terms
such as murder, voluntary manslaughter, involuntary manslaughter,
and justifiable homicide. In deciding whether a given case falls
above or below this plane, the function of the trier of facts is
limited to finding facts. The plane remains fixed unless moved by
legislative act."
"The second plane separates from all murder cases those in which
the penalty of death is a possible punishment. This plane is
established by statutory definitions of aggravating circumstances.
The function of the factfinder is again limited to making a
determination of whether certain facts have been established.
Except where there is treason or aircraft hijacking, a given case
may not move above this second plane unless at least one statutory
aggravating circumstance exists. Code Ann. § 27-2534.1(c)."
"The third plane separates, from all cases in which a penalty of
death may be imposed, those cases in which it shall be imposed.
There is an absolute discretion in the factfinder to place any
given case below the plane and not impose death. The plane itself
is established by the factfinder. In establishing the plane, the
factfinder considers all evidence in extenuation, mitigation and
aggravation of punishment. Code Ann. 27-2503 and 27-2534.1. There
is a final limitation on the imposition of the death penalty
resting in the automatic appeal procedure: this court determines
whether the penalty of death was imposed under the influence of
passion, prejudice,
Page 462 U. S. 872
or any other arbitrary factor; whether the statutory aggravating
circumstances are supported by the evidence; and whether the
sentence of death is excessive or disproportionate to the penalty
imposed in similar cases. Code Ann. § 27-2537. Performance of this
function may cause this court to remove a case from the death
penalty category, but can never have the opposite result."
"The purpose of the statutory aggravating circumstances is to
limit to a large degree, but not completely, the factfinder's
discretion. Unless at least one of the ten statutory aggravating
circumstances exists, the death penalty may not be imposed in any
event. If there exists at least one statutory aggravating
circumstance, the death penalty may be imposed, but the factfinder
has a discretion to decline to do so without giving any reason.
Waters v. State, 248 Ga. 355, 369,
283 S.E.2d
238 (1981);
Hawes v. State, 240 Ga. 327, 334,
240 S.E.2d 833
(1977);
Fleming v. State, 240 Ga. 142,
240 S.E.2d 37
(1977). In making the decision as to the penalty, the factfinder
takes into consideration all circumstances before it from both the
guilt innocence and the sentence phases of the trial. These
circumstances relate both to the offense and the defendant."
"A case may not pass the second plane into that area in which
the death penalty is authorized unless at least one statutory
aggravating circumstance is found. However, this plane is passed
regardless of the number of statutory aggravating circumstances
found, so long as there is at least one. Once beyond this plane,
the case enters the area of the factfinder's discretion, in which
all the facts and circumstances of the case determine, in terms of
our metaphor, whether or not the case passes the third plane and
into the area in which the death penalty is imposed."
250 Ga. 97, 99-100,
297 S.E.2d 1,
3-4 (1982).
Page 462 U. S. 873
The Georgia Supreme Court then explained why the failure of the
second ground of the (b)(1) statutory aggravating circumstance did
not invalidate respondent's death sentence. It first noted that the
evidence of respondent's prior convictions had been properly
received, and could properly have been considered by the jury. The
court expressed the opinion that the mere fact that such evidence
was improperly designated "statutory" had an "inconsequential
impact" on the jury's death penalty decision. Finally, the court
noted that a different result might be reached if the failed
circumstance had been supported by evidence not otherwise
admissible, or if there was reason to believe that, because of the
failure, the sentence was imposed under the influence of an
arbitrary factor.
Id. at 100, 297 S.E.2d at 4.
We are indebted to the Georgia Supreme Court for its helpful
response to our certified question. That response makes it clear
that we must confront three separate issues in order to decide this
case. First, does the limited purpose served by the finding of a
statutory aggravating circumstance in Georgia allow the jury a
measure of discretion that is forbidden by
Furman v.
Georgia, 408 U. S. 238
(1972), and subsequent cases? Second, has the rule of
Stromberg
v. California, 283 U. S. 359
(1931), been violated? Third, in this case, even though
respondent's prior criminal record was properly admitted, does the
possibility that the reference to the invalid statutory aggravating
circumstance in the judge's instruction affected the jury's
deliberations require that the death sentence be set aside? We
discuss these issues in turn.
I
In Georgia, unlike some other States, [
Footnote 12] the jury is not instructed to give any
special weight to any aggravating circumstance,
Page 462 U. S. 874
to consider multiple aggravating circumstances any more
significant than a single such circumstance, or to balance
aggravating against mitigating circumstances pursuant to any
special standard. Thus, in Georgia, 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. For this reason, respondent argues that
Georgia's statutory scheme is invalid under the holding in
Furman v. Georgia.
A fair statement of the consensus expressed by the Court in
Furman is that,
"where discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life should be taken
or spared, that discretion must be suitably directed and limited so
as to minimize the risk of wholly arbitrary and capricious
action."
Gregg v. Georgia, 428 U. S. 153,
428 U. S. 189
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). After thus
summarizing the central mandate of
Furman, the joint
opinion in
Gregg set forth a general exposition of
sentencing procedures that would satisfy the concerns of
Furman. 428 U.S. at
428 U. S.
189-195. But it expressly stated:
"We do not intend to suggest that only the above-described
procedures would be permissible under
Furman, or that any
sentencing system constructed along these
Page 462 U. S. 875
general lines would inevitably satisfy the concerns of
Furman, for each distinct system must be examined on an
individual basis."
Id. at
428 U. S. 195.
The opinion then turned to specific consideration of the
constitutionality of Georgia's capital sentencing procedures.
Id. at
428 U. S.
196-207.
Georgia's scheme includes two important features which the joint
opinion described in its general discussion of sentencing
procedures that would guide and channel the exercise of discretion.
Georgia has a bifurcated procedure,
see id. at
428 U. S.
190-191, and its statute also mandates meaningful
appellate review of every death sentence,
see id. at
428 U. S. 195.
The statute does not, however, follow the Model Penal Code's
recommendation that the jury's discretion in weighing aggravating
and mitigating circumstances against each other should be governed
by specific standards.
See id. at
428 U. S. 193.
Instead, as the Georgia Supreme Court has unambiguously advised us,
the aggravating circumstance merely performs the function of
narrowing the category of persons convicted of murder who are
eligible for the death penalty.
Respondent argues that the mandate of
Furman is
violated by a scheme that permits the jury to exercise unbridled
discretion in determining whether the death penalty should be
imposed after it has found that the defendant is a member of the
class made eligible for that penalty by statute. But that argument
could not be accepted without overruling our specific holding in
Gregg. For the Court approved Georgia's capital sentencing
statute even though it clearly did not channel the jury's
discretion by enunciating specific standards to guide the jury's
consideration of aggravating and mitigating circumstances.
[
Footnote 13]
Page 462 U. S. 876
The approval of Georgia's capital sentencing procedure rested
primarily on two features of the scheme: that the jury was required
to find at least one valid statutory aggravating circumstance and
to identify it in writing, and that the State Supreme Court
reviewed the record of every death penalty proceeding to determine
whether the sentence was arbitrary or disproportionate. These
elements, the opinion concluded, adequately protected against the
wanton and freakish imposition of the death penalty. [
Footnote 14] This conclusion rested,
of course, on the fundamental requirement that each statutory
aggravating circumstance must satisfy a constitutional standard
derived from the principles of
Furman itself. For a
system
Page 462 U. S. 877
"could have standards so vague that they would fail adequately
to channel the sentencing decision patterns of juries, with the
result that a pattern of arbitrary and capricious sentencing like
that found unconstitutional in
Furman could occur."
428 U.S. at
428 U. S. 195,
n. 46. To avoid this constitutional flaw, an aggravating
circumstance 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. [
Footnote
15]
Page 462 U. S. 878
Thus, in
Godfrey v. Georgia, 446 U.
S. 420 (1980), the Court struck down an aggravating
circumstance that failed to narrow the class of persons eligible
for the death penalty. Justice Stewart's opinion for the plurality
concluded that the aggravating circumstance described in subsection
(b)(7) of the Georgia statute, as construed by the Georgia Supreme
Court, failed to create any "inherent restraint on the arbitrary
and capricious infliction of the death sentence," because a person
of ordinary sensibility could find that almost every murder fit the
stated criteria.
Id. at
446 U. S.
428-429. [
Footnote
16] Moreover, the facts of the case itself did not distinguish
the murder from any other murder. The plurality concluded that
there was "no principled way to distinguish this case, in which the
death penalty was imposed, from the many in which it was not."
Id. at
446 U. S.
433.
Our cases indicate, then, that statutory aggravating
circumstances play a constitutionally necessary function at the
stage of legislative definition: they circumscribe the class of
persons eligible for the death penalty. But the Constitution does
not require the jury to ignore other possible aggravating factors
in the process of selecting, from among that class, those
defendants who will actually be sentenced to death. [
Footnote 17]
Page 462 U. S. 879
What is important at the selection stage is an individualized
determination on the basis of the character of the individual and
the circumstances of the crime.
See Eddings v. Oklahoma,
455 U. S. 104,
455 U. S.
110-112 (1982);
Lockett v. Ohio, 438 U.
S. 586,
438 U. S.
601-605 (1978) (plurality opinion);
Roberts (Harry)
v. Louisiana, 431 U. S. 633,
431 U. S.
636-637 (1977); Gregg, 428 U.S. at
428 U. S. 197
(opinion of Stewart, POWELL, and STEVENS, JJ.);
Proffitt v.
Florida, 428 U.S. at
428 U. S.
251-252 (opinion of Stewart, POWELL, and STEVENS, JJ.);
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S.
303-304 (1976) (plurality opinion). [
Footnote 18]
The Georgia scheme provides for categorical narrowing at the
definition stage, and for individualized determination and
appellate review at the selection stage. We therefore remain
convinced, as we were in 1976, that the structure of the statute is
constitutional. Moreover, the narrowing function has been properly
achieved in this case by the two valid aggravating circumstances
upheld by the Georgia Supreme Court -- that respondent had escaped
from lawful confinement and that he had a prior record of
conviction for a capital felony. These two findings adequately
differentiate this case in an objective, evenhanded, and
substantively rational way from the many Georgia murder cases in
which the death penalty may not be imposed. Moreover, the Georgia
Supreme Court in this case reviewed the death sentence to determine
whether it was arbitrary, excessive, or disproportionate. [
Footnote 19]
Page 462 U. S. 880
Thus, the absence of legislative or court-imposed standards to
govern the jury in weighing the significance of either or both of
those aggravating circumstances does not render the Georgia capital
sentencing statute invalid as applied in this case.
II
Respondent contends that, under the rule of
Stromberg v.
California, 283 U. S. 359
(1931), and subsequent cases, the invalidity of one of the
statutory aggravating circumstances underlying the jury's
sentencing verdict requires that its entire death sentence be set
aside. In order to evaluate this contention, it is necessary to
identify two related but different rules that have their source in
the
Stromberg case.
In
Stromberg, a member of the Communist Party was
convicted of displaying a red flag in violation of the California
Penal Code. The California statute prohibited such a display (1) as
a "sign, symbol or emblem" of opposition to organized government;
(2) as an invitation or stimulus to anarchistic action; or (3) as
an aid to seditious propaganda. This Court held that the first
clause of the statute was repugnant to the Federal Constitution,
and found it unnecessary to pass on the validity of the other two
clauses because the jury's guilty verdict might have rested
exclusively on a conclusion that Stromberg had violated the first.
The Court explained:
Page 462 U. S. 881
"The verdict against the appellant was a general one. It did not
specify the ground upon which it rested. As there were three
purposes set forth in the statute, and the jury were instructed
that their verdict might be given with respect to any one of them,
independently considered, it is impossible to say under which
clause of the statute the conviction was obtained. If any one of
these clauses, which the state court has held to be separable, was
invalid, it cannot be determined upon this record that the
appellant was not convicted under that clause."
Id. at
283 U. S.
367-368.
"The first clause of the statute being invalid upon its face,
the conviction of the appellant, which, so far as the record
discloses, may have rested upon that clause exclusively, must be
set aside."
Id. at
283 U. S.
369-370.
One rule derived from the
Stromberg case is that a
general verdict must be set aside if the jury was instructed that
it could rely on any of two or more independent grounds, and one of
those grounds is insufficient, because the verdict may have rested
exclusively on the insufficient ground. The cases in which this
rule has been applied all involved general verdicts based on a
record that left the reviewing court uncertain as to the actual
ground on which the jury's decision rested.
See, e.g., Williams
v. North Carolina, 317 U. S. 287,
317 U. S. 292
(1942);
Cramer v. United States, 325 U. S.
1,
325 U. S. 36, n.
45 (1945);
Terminiello v. Chicago, 337 U. S.
1,
337 U. S. 5-6
(1949);
Yates v. United States, 354 U.
S. 298,
354 U. S.
311-312 (1957). This rule does not require that
respondent's death sentence be vacated, because the jury did not
merely return a general verdict stating that it had found at least
one aggravating circumstance. The jury expressly found aggravating
circumstances that were valid and legally sufficient to support the
death penalty.
The second rule derived from the
Stromberg case is
illustrated by
Thomas v. Collins, 323 U.
S. 516,
323 U. S.
528-529 (1945), and
Street v. New York,
394 U. S. 576,
394 U. S.
586-590 (1969). In
Page 462 U. S. 882
those cases, we made clear that the reasoning of
Stromberg encompasses a situation in which the general
verdict on a single-count indictment or information rested on
both a constitutional and an unconstitutional ground. In
Thomas v. Collins, a labor organizer's contempt citation
was predicated both upon a speech expressing a general invitation
to a group of nonunion workers, which the Court held to be
constitutionally protected speech, and upon solicitation of a
single individual. The Court declined to consider the State's
contention that the judgment could be sustained on the basis of the
individual solicitation alone, [
Footnote 20] for the record showed that the penalty had
been imposed on account of both solicitations. "The judgment
therefore must be affirmed as to both or as to neither." 323 U.S.
at
323 U. S. 529.
Similarly, in
Street, the record indicated that
petitioner's conviction on a single-count indictment could have
been based on his protected words as well as on his arguably
unprotected conduct, flag burning. We stated that, "unless the
record negates the possibility that the conviction was based on
both alleged violations," the judgment could not be affirmed unless
both were valid. 394 U.S. at
394 U. S.
588.
The Court's opinion in
Street explained:
"We take the rationale of
Thomas to be that, when a
single-count indictment or information charges the commission of a
crime by virtue of the defendant's having done both a
constitutionally protected act and one which may be unprotected,
and a guilty verdict ensues without elucidation, there is an
unacceptable danger that the trier of fact will have regarded the
two acts as 'intertwined,' and have rested the conviction on both
together.
See 323 U.S. at
323 U. S.
528-529,
323 U. S. 540-541. There is
no comparable
Page 462 U. S. 883
hazard when the indictment or information is in several counts
and the conviction is explicitly declared to rest on findings of
guilt on certain of these counts, for in such instances, there is
positive evidence that the trier of fact considered each count on
its own merits, and separately from the others."
Ibid. (footnote omitted).
The rationale of
Thomas and
Street applies to
cases in which there is no uncertainty about the multiple grounds
on which a general verdict rests. If, under the instructions to the
jury, one way of committing the offense charged is to perform an
act protected by the Constitution, the rule of these cases requires
that a general verdict of guilt be set aside even if the
defendant's unprotected conduct, considered separately, would
support the verdict. It is a difficult theoretical question whether
the rule of
Thomas and
Street applies to the
Georgia death penalty scheme. The jury's imposition of the death
sentence after finding more than one aggravating circumstance is
not precisely the same as the jury s verdict of guilty on a
single-count indictment after finding that the defendant has
engaged in more than one type of conduct encompassed by the same
criminal charge, because a wider range of considerations enters
into the former determination. On the other hand, it is also not
precisely the same as the imposition of a single sentence of
imprisonment after guilty verdicts on each of several separate
counts in a multiple-count indictment, [
Footnote 21] because the qualitatively different
sentence of death is imposed only after a channeled sentencing
procedure. We need not answer this question here. The second rule
derived from
Stromberg, embodied in
Thomas and
Street, applies only in cases in which the State has based
its prosecution,
Page 462 U. S. 884
at least in part, on a charge that constitutionally protected
activity is unlawful. No such charge was made in respondent's
sentencing proceeding.
In
Stromberg, Thomas, and
Street, the trial
courts' judgments rested, in part, on the fact that the defendant
had been found guilty of expressive activity protected by the First
Amendment. In contrast, in this case, there is no suggestion that
any of the aggravating circumstances involved any conduct protected
by the First Amendment or by any other provision of the
Constitution. Accordingly, even if the
Stromberg rules may
sometimes apply in the sentencing context, a death sentence
supported by at least one valid aggravating circumstance need not
be set aside under the second
Stromberg rule simply
because another aggravating circumstance is "invalid" in the sense
that it is insufficient, by itself, to support the death penalty.
In this case, the jury's finding that respondent was a person who
has a "substantial history of serious assaultive criminal
convictions" did not provide a sufficient basis for imposing the
death sentence. But it raised none of the concerns underlying the
holdings in
Stromberg, Thomas, and
Street, for it
did not treat constitutionally protected conduct as an aggravating
circumstance.
III
Two themes have been reiterated in our opinions discussing the
procedures required by the Constitution in capital sentencing
determinations. On the one hand, as the general comments in the
Gregg joint opinion indicated, 428 U.S. at
428 U. S.
192-195, and as THE CHIEF JUSTICE explicitly noted in
Lockett v. Ohio, 438 U.S. at
438 U. S. 605
(plurality opinion), there can be "no perfect procedure for
deciding in which cases governmental authority should be used to
impose death."
See also Beck v. Alabama, 447 U.
S. 625,
447 U. S. 638,
n. 13 (1980). On the other hand, because there is a qualitative
difference between death and any other permissible form of
punishment,
"there is a corresponding difference in the need for
reliability
Page 462 U. S. 885
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.
"It is of vital importance to the defendant and to the community
that any decision to impose the death sentence be, and appear to
be, based on reason rather than caprice or emotion."
Gardner v. Florida, 430 U. S. 349,
430 U. S. 358
(1977). Thus, although not every imperfection in the deliberative
process is sufficient, even in a capital case, to set aside a state
court judgment, the severity of the sentence mandates careful
scrutiny in the review of any colorable claim of error.
Respondent contends that the death sentence was impaired because
the judge instructed the jury with regard to an invalid statutory
aggravating circumstance, a "substantial history of serious
assaultive criminal convictions," for these instructions may have
affected the jury's deliberations. In analyzing this contention, it
is essential to keep in mind the sense in which that aggravating
circumstance is "invalid." It is not invalid because it authorizes
a jury to draw adverse inferences from conduct that is
constitutionally protected. Georgia has not, for example, sought to
characterize the display of a red flag,
cf. Stromberg v.
California, the expression of unpopular political views,
cf. Terminiello v. Chicago, 337 U. S.
1 (1949), or the request for trial by jury,
cf.
United States v. Jackson, 390 U. S. 570
(1968), as an aggravating circumstance. Nor has Georgia attached
the "aggravating" label to factors that are constitutionally
impermissible or totally irrelevant to the sentencing process, such
as for example the race, religion, or political affiliation of the
defendant,
cf. Herndon v. Lowry, 301 U.
S. 242 (1937), or to conduct that actually should
militate in favor of a lesser penalty, such as perhaps the
defendant's mental illness.
Cf. Miller v.
Florida, 373 So. 2d
882, 885-886 (Fla.1979). If the aggravating circumstance at
issue in this case had been invalid for reasons such as these, due
process of law would require that the jury's decision to impose
death be set aside.
Page 462 U. S. 886
But the invalid aggravating circumstance found by the jury in
this case was struck down in
Arnold because the Georgia
Supreme Court concluded that it fails to provide an adequate basis
for distinguishing a murder case in which the death penalty may be
imposed from those cases in which such a penalty may not be
imposed.
See nn.
5 and
|
5 and S. 862fn16|>16,
supra. The underlying evidence is nevertheless fully
admissible at the sentencing phase. As we noted in
Gregg,
428 U.S. at
428 U. S. 163,
the Georgia statute provides that, at the sentencing hearing, the
judge or jury
"'shall hear additional evidence in extenuation, mitigation, and
aggravation of punishment,
including the record of any prior
criminal convictions and pleas of guilty or pleas of nolo
contendere
of the defendant, or the absence of any prior
conviction and pleas: Provided, however, that only such evidence in
aggravation as the State has made known to the defendant prior to
his trial shall be admissible.'"
Ga.Code § 27-2503 (1975) (emphasis supplied). [
Footnote 22] We expressly rejected
petitioner's objection to the wide scope of evidence and argument
allowed at presentence hearings.
"We think that the Georgia court wisely has chosen not to impose
unnecessary restrictions on the evidence that can be offered at
such a hearing and to approve open and far-ranging argument. . . .
So long as the evidence introduced and the arguments made at the
presentence hearing do not prejudice a defendant, it is preferable
not to impose restrictions. We think it desirable for the jury to
have as much information before it as possible
Page 462 U. S. 887
when it makes the sentencing decision."
428 U.S. at
428 U. S.
203-204.
See id. at
428 U. S.
206-207;
see also n 17,
supra.
Thus, any evidence on which the jury might have relied in this
case to find that respondent had previously been convicted of a
substantial number of serious assaultive offenses, as he concedes
he had been, was properly adduced at the sentencing hearing and was
fully subject to explanation by the defendant. [
Footnote 23]
Cf. Gardner v. Florida,
supra, (requiring that the defendant have the opportunity to
rebut evidence and State's theory in sentencing proceeding);
Presnell v. Georgia, 439 U. S. 14,
439 U. S. 16, n.
3 (1978) (same). [
Footnote
24] This case involves a statutory aggravating circumstance,
invalidated by the State Supreme Court on grounds of vagueness,
whose terms plausibly described aspects of the defendant's
background that were properly before the jury and whose accuracy
was unchallenged. Hence the erroneous instruction does not
implicate
Page 462 U. S. 888
our repeated recognition that the "qualitative 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. at
438 U. S. 604
(opinion of BURGER, C.J.).
Although the Court of Appeals acknowledged on rehearing that the
evidence was admissible, it expressed the concern that the trial
court's instructions "may have unduly directed the jury's attention
to his prior conviction." 648 F.2d at 446. But, assuming that the
instruction did induce the jury to place greater emphasis upon the
respondent's prior criminal record than it would otherwise have
done, the question remains whether that emphasis violated any
constitutional right. In answering this question, it is appropriate
to compare the instruction that was actually given,
see
supra at
462 U. S. 866,
with an instruction on the same subject that would have been
unobjectionable.
Cf. Henderson v. Kibbe, 431 U.
S. 145,
431 U. S.
154-157(1977). Nothing in the United States Constitution
prohibits a trial judge from instructing a jury that it would be
appropriate to take account of a defendant's prior criminal record
in making its sentencing determination,
see n 17,
supra, even though the
defendant's prior history of noncapital convictions could not,
by itself, provide sufficient justification for imposing
the death sentence. There would have been no constitutional
infirmity in an instruction stating, in substance:
"If you find beyond a reasonable doubt that the defendant is a
person who has previously been convicted of a capital felony, or
that he has escaped from lawful confinement, you will be authorized
to impose the death sentence, and, in deciding whether or not that
sentence is appropriate, you may consider the remainder of his
prior criminal record."
The effect the erroneous instruction may have had on the jury is
therefore merely a consequence of the statutory label "aggravating
circumstance." That label arguably might have caused the jury to
give somewhat greater weight to respondent's prior criminal record
than it otherwise would have given. But we do not think the Georgia
Supreme
Page 462 U. S. 889
Court erred in its conclusion that the "mere fact that some of
the aggravating circumstances presented were improperly designated
statutory'" had "an inconsequential impact on the jury's
decision regarding the death penalty." 250 Ga. at 100, 297 S.E.2d
at 4. The instructions, see supra at 462 U. S. 866,
did not place particular emphasis on the role of statutory
aggravating circumstances in the jury's ultimate decision. Instead
the trial court instructed the jury to "consider all of the
evidence received in court throughout the trial before you" and
to
"consider all facts and circumstances presented in extinuation
[
sic], mitigation and aggravation of punishment as well as
such arguments as have been presented for the State and for the
Defense."
App. 18. More importantly, for the reasons discussed above, any
possible impact cannot fairly be regarded as a constitutional
defect in the sentencing process. [
Footnote 25]
Page 462 U. S. 890
Our decision in this case depends in part on the existence of an
important procedural safeguard, the mandatory appellate review of
each death sentence by the Georgia Supreme Court to avoid
arbitrariness and to assure proportionality. [
Footnote 26] We accept that court's view that
the subsequent invalidation of one of several statutory aggravating
circumstances does not automatically require reversal of the death
penalty, having been assured that a death sentence will be set
aside if the invalidation of an aggravating circumstance makes the
penalty arbitrary or capricious. 250 Ga. at 101, 297 S.E.2d at 4.
The Georgia Supreme Court, in its response to our certified
question, expressly stated:
"A different result might be reached in a case where evidence
was submitted in support of a statutory aggravating circumstance
which was not otherwise admissible, and thereafter the circumstance
failed."
Ibid. As we noted in
Gregg, 428 U.S. at
428 U. S.
204-205, we have also been assured that a death sentence
will be vacated if it is excessive or substantially
disproportionate to the penalties that have been imposed under
similar circumstances.
Finally, we note that, in deciding this case, we do not express
any opinion concerning the possible significance of a holding that
a particular aggravating circumstance is "invalid" under a
statutory scheme in which the judge or jury is specifically
instructed to weigh statutory aggravating and mitigating
circumstances in exercising its discretion whether to impose the
death penalty.
See n 12,
supra. As we have discussed,
see
supra at
462 U. S.
873-880, the Constitution does not require a State to
adopt specific standards for instructing the jury in its
consideration of aggravating and mitigating circumstances, and
Georgia has not adopted such a system.
Page 462 U. S. 891
Under Georgia's sentencing scheme, and under the trial judge!'s
instructions in this case, no suggestion is made that the presence
of more than one aggravating circumstance should be given special
weight. Whether or not the jury had concluded that respondent's
prior record of criminal convictions merited the label
"substantial" or the label "assaultive," the jury was plainly
entitled to consider that record, together with all of the other
evidence before it, in making its sentencing determination.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
Georgia Code § 27-2534. 1(b) (1978) provided, in part:
"In all cases of other offenses for which the death penalty may
be authorized, the judge shall consider, or he shall include in his
instructions to the jury for it to consider, any mitigating
circumstances or aggravating circumstances otherwise authorized by
law and any of the following statutory aggravating circumstances
which may be supported by the evidence:"
"(1) The offense of murder, rape, armed robbery, or kidnapping
was committed by a person with a prior record of conviction for a
capital felony, or the offense of murder was committed by a person
who has a substantial history of serious assaultive criminal
convictions."
* * * *
"(7) The offense of murder, rape, armed robbery, or kidnapping
was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to
the victim."
* * * *
"(9) The offense of murder was committed by a person in, or who
has escaped from, the lawful custody of a peace officer or place of
lawful confinement."
[
Footnote 2]
The instruction to the sentencing jury, App. 18-19, is quoted in
full in our opinion in
Zant v. Stephens, 456 U.
S. 410,
456 U. S.
412-413, n. 1 (1982).
[
Footnote 3]
The jury made the following special findings:
"(1) The offense of Murder was committed by a person with a
prior record of conviction for a capital felony. The offense of
Murder was committed by a person who has a substantial history of
serious assaultive criminal convictions. (2) The offense of Murder
was committed by a person who has escaped from the lawful custody
of a peace officer and place of lawful confinement."
App. 23.
[
Footnote 4]
Thus, this case does not implicate our holding in
Godfrey v.
Georgia, 446 U. S. 420
(1980), that the (b)(7) aggravating circumstance, as construed by
the Georgia Supreme Court, was unconstitutionally broad and
vague.
[
Footnote 5]
The defendant in
Arnold had been sentenced to death by
a jury which found no other aggravating circumstance. On appeal, he
contended that the language of the clause
"does not provide the sufficiently 'clear and objective
standards' necessary to control the jury's discretion in imposing
the death penalty.
Coley v. State, [231 Ga. 829, 834,
204 S.E.2d
612, 615 (1974)];
Furman v. Georgia, 408 U. S.
238 (1971)."
The Georgia Supreme Court agreed that the statutory language was
too vague and nonspecific to be applied evenhandedly by a jury. 236
Ga. at 540-542, 224 S.E.2d at 391-392.
[
Footnote 6]
In his state habeas petition, respondent unsuccessfully
challenged the aggravating circumstance that he had a prior
conviction for a capital felony. He was admittedly under such a
conviction at the time of his trial in this case, but not at the
time of the murder. The Supreme Court of Georgia interpreted the
statute, Ga.Code § 27-2534.1(b)(1) (1978), as referring to the
defendant's record at the time of sentencing. Accordingly,
respondent's contention was rejected. 241 Ga. at 602-603, 247
S.E.2d at 96-97. Respondent renewed his challenge to that
aggravating circumstance in his federal habeas petition, but the
Court of Appeals correctly recognized that it had no authority to
question the Georgia Supreme Court's interpretation of state law.
631 F.2d 397, 405 (CA5 1980). The contention is not renewed
here.
[
Footnote 7]
Id. at 404-405. This aspect of the Court of Appeals'
decision is not before us.
[
Footnote 8]
Ga.Code 27-2503(a) (1978); 241 Ga. at 603-604, 247 S.E.2d at
97-98;
see infra at
462 U. S.
886-887.
[
Footnote 9]
Brief for Respondent 40-45; Brief for State of Alabama
et
al. as
Amici Curiae 13-15.
[
Footnote 10]
456 U.S. at
456 U. S. 414;
cf. Gregg v. Georgia, 428 U. S. 153,
428 U. S. 201,
n. 53 (1976) (noting cases in which the Georgia Supreme Court had
not explicitly relied on one of several aggravating circumstances
when it upheld the death sentence).
[
Footnote 11]
We certified the following question:
"What are the premises of state law that support the conclusion
that the death sentence in this case is not impaired by the
invalidity of one of the statutory aggravating circumstances found
by the jury?"
456 U.S. at
456 U. S.
416-417.
[
Footnote 12]
See, e.g., Williams v. State, 274 Ark. 9, 10,
621 S.W.2d
686, 687(1981);
State v. Irwin, 304 N.C. 93, 107-108,
282 S.E.2d
439, 448-449 (1981);
State v. Moore, 614
S.W.2d 348, 351-352 (Tenn.1981);
Hopkinson v.
State, 632 P.2d 79,
90, n. 1, 171-172 (Wyo.1981). In each of these cases, the State
Supreme Court set aside a death sentence based on both valid and
invalid aggravating circumstances. Respondent advances these cases
in support of his contention that a similar result is required
here. However, examination of the relevant state statutes shows
that, in each of these States, not only must the jury find at least
one aggravating circumstance in order to have the power to impose
the death sentence; in addition, the law requires the jury to weigh
the aggravating circumstances against the mitigating circumstances
when it decides whether or not the death penalty should be imposed.
See Ark.Stat.Ann. § 41-1302(1) (1977); N.C.Gen.Stat.
15A-2000(b) (1978); Tenn.Code Ann. § 39-2-203(g) (1982); Wyo.Stat.
§ 6-2-102(d)(i) (1983).
[
Footnote 13]
The joint opinion specifically described the Georgia scheme in
these terms:
"Georgia did act, however, to narrow the class of murderers
subject to capital punishment by specifying 10 statutory
aggravating circumstances, one of which must be found by the jury
to exist beyond a reasonable doubt before a death sentence can ever
be imposed. In addition, the jury is authorized to consider any
other appropriate aggravating or mitigating circumstances. §
27-2534.1(b) (Supp.1975). The jury is not required to find any
mitigating circumstance in order to make a recommendation of mercy
that is binding on the trial court,
see § 27-2302
(Supp.1975), but it must find a statutory aggravating circumstance
before recommending a sentence of death."
428 U.S. at
428 U. S.
196-197;
see also id. at
428 U. S. 161,
428 U. S. 165,
428 U. S.
206-207.
Cf. id. at
428 U. S. 208,
428 U. S. 218,
428 U. S. 222
(opinion of WHITE, J., concurring in judgment).
The joint opinion issued the same day in
Jurek v.
Texas, 428 U. S. 262
(1976), makes clear that specific standards for balancing
aggravating against mitigating circumstances are not
constitutionally required. In
Jurek, we held that the
State's action in "narrowing the categories of murders for which a
death sentence may ever be imposed" served much the same purpose as
the lists of statutory aggravating circumstances that Georgia and
Florida had adopted.
Id. at
428 U. S. 270.
We also held that one of the three questions presented to the
sentencing jury permitted the defendant to bring mitigating
circumstances to the jury's attention.
Id. at
428 U. S.
273-274. Thus, in Texas, aggravating and mitigating
circumstances were not considered at the same stage of the criminal
prosecution, and certainly were not explicitly balanced against
each other.
[
Footnote 14]
"While the jury is permitted to consider any aggravating or
mitigating circumstances, it must find and identify at least one
statutory aggravating factor before it may impose a penalty of
death. In this way, the jury's discretion is channeled. No longer
can a jury wantonly and freakishly impose the death sentence; it is
always circumscribed by the legislative guidelines. In addition,
the review function of the Supreme Court of Georgia affords
additional assurance that the concerns that prompted our decision
in
Furman are not present to any significant degree in the
Georgia procedure applied here."
428 U.S. at
428 U. S.
206-207.
[
Footnote 15]
These standards for statutory aggravating circumstances address
the concerns voiced by several of the opinions in
Furman v.
Georgia. See 408 U.S. at
408 U. S. 248,
n. 11 (Douglas, J., concurring);
id. at
408 U. S. 294
(BRENNAN, J., concurring) ("it is highly implausible that only the
worst criminals or the criminals who commit the worst crimes are
selected for this punishment");
id. at
408 U. S.
309-310 (Stewart, J., concurring) ("of all the people
convicted of rapes and murders in 1967 and 1968, many just as
reprehensible as these, the petitioners are among a capriciously
selected random handful upon whom the sentence of death has in fact
been imposed");
id. at
408 U. S. 313
(WHITE, J., concurring) ("there is no meaningful basis for
distinguishing the few cases in which it is imposed from the many
cases in which it is not").
In
Gregg, the joint opinion again recognized the need
for legislative criteria to limit the death penalty to certain
crimes:
"[T]he decision that capital punishment may be the appropriate
sanction in extreme cases is an expression of the community's
belief that certain crimes are themselves so grievous an affront to
humanity that the only adequate response may be the penalty of
death."
428 U.S. at
428 U. S. 184.
The opinion also noted with approval the efforts of legislatures to
"define those crimes and those criminals for which capital
punishment is most probably an effective deterrent."
Id.
at
428 U. S. 186.
The opinion of JUSTICE WHITE concurring in the judgment in
Gregg asserted that, over time, as the aggravating
circumstance requirement was applied,
"the types of murders for which the death penalty may be imposed
[would] become more narrowly defined, and [would be] limited to
those which are particularly serious or for which the death penalty
is peculiarly appropriate."
Id. at
428 U. S. 222.
Cf. Roberts (Harry) v. Louisiana, 431 U.
S. 633,
431 U. S. 636
(1977) (the State may consider as an aggravating circumstance the
fact that the murder victim was a peace officer performing his
regular duties, because there is "a special interest in affording
protection to those public servants who regularly must risk their
lives in order to guard the safety of other persons and
property").
[
Footnote 16]
This Court's conclusion in
Godfrey was analogous to the
Georgia Supreme Court's holding in
Arnold v. State that
the second clause of the (b)(1) aggravating circumstance, which is
at issue in this ease, was "too vague and nonspecific to be applied
evenhandedly by a jury." 236 Ga. at 541, 224 S.E.2d at 391. The
defendant in that ease, who had two prior convictions, had been
sentenced to death by the jury solely on a finding that he had a
"
substantial history' of `serious assaultive criminal
convictions.'" The court concluded that the words "substantial
history" were so highly subjective as to be unconstitutional.
Id. at 542, 224 S.E.2d at 392; see n 5, supra. That aggravating
circumstance, in the view of the Georgia Supreme Court, did not
provide a principled basis for distinguishing Arnold's
case from the many other murder cases in which the death penalty
was not imposed under the statute.
[
Footnote 17]
See Gregg, 428 U.S. at
428 U. S. 164,
428 U. S.
196-197,
428 U. S. 206;
Proffitt v. Florida, 428 U. S. 242,
428 U. S.
256-257, n. 14 (1976) (opinion of Stewart, POWELL, and
STEVENS, JJ.). Similarly, the Model Penal Code draft discussed in
Gregg, supra, at
428 U. S.
192-195, sets forth lists of aggravating and mitigating
circumstances but also provides that the sentencer "shall take into
account . . . any other facts that it deems relevant. . . ." ALI,
Model Penal Code 201.6 (Prop.Off.Draft, 1962).
A State is, of course, free to decide as a matter of state law
to limit the evidence of aggravating factors that the prosecution
may offer at the sentencing hearing. A number of States do not
permit the sentencer to consider aggravating circumstances other
than those enumerated in the statute.
See Gillers,
Deciding Who Dies, 129 U.Pa.L.Rev. 1, 101-119 (1980);
see,
e.g., Ark.Stat.Ann. § 41-1301(4) (1977); 42 Pa.Cons.Stat. §
9711(a)(2) (1980).
[
Footnote 18]
See Gillers,
supra, n 17, at 26-27.
[
Footnote 19]
The Georgia Supreme Court conducts an independent review of the
propriety of the sentence even when the defendant has not
specifically raised objections at trial.
See Stephens v.
State, 237 Ga. 259, 260,
227 S.E.2d
261, 262,
cert. denied, 429 U.S. 986 (1976). In this
case, the Georgia Supreme Court explained:
"In performing the sentence comparison required by Code Ann. §
27-2537(c)(3), this court uses for comparison purposes not only
similar cases in which death was imposed, but similar cases in
which death was not imposed."
237 Ga. at 262, 227 S.E.2d at 263. As an appendix to the
opinion, it provided a list of the similar cases it had considered,
as the statute requires.
Id. at 263, 227 S.E.2d at 264.
See also Ross v. State, 233 Ga. 361, 364-367,
211 S.E.2d
356, 358-360 (1974);
Tucker v. State, 245 Ga. 68, 74,
263 S.E.2d 109,
113
(1980).
[
Footnote 20]
The State neither conceded nor unequivocally denied that the
sentence was imposed on account of both acts.
"Nevertheless the State maintains that the invitation to
O'Sullivan, in itself, is sufficient to sustain the judgment and
sentence, and that nothing more need be considered to support
them."
323 U.S. at
323 U. S. 528,
n. 14.
[
Footnote 21]
In this situation, the Court has held that the single sentence
may stand, even if one or more of the counts is invalid, as long as
one of the counts is valid and the sentence is within the range
authorized by law.
See Claassen v. United States,
142 U. S. 140
(1891);
Pinkerton v. United States, 328 U.
S. 640 (1946);
Barenblatt v. United States,
360 U. S. 109
(1959).
[
Footnote 22]
See Fair v. State, 245 Ga. 868, 873, 268 S. E;.2d 316,
321 (1980) ("Any lawful evidence which tends to show the motive of
the defendant, his lack of remorse, his general moral character,
and his predisposition to commit other crimes is admissible in
aggravation, subject to the notice provisions of the statute").
[
Footnote 23]
"The purpose of Code Ann. § 27-2503(a) is to allow a defendant
to examine his record to determine if the convictions are in fact
his, if he was represented by counsel, and any other defect which
would render such documents inadmissible during the pre-sentencing
phase of the trial."
Herring v. State, 238 Ga. 288, 290,
232 S.E.2d
826,
828 (1977).
See Franklin v. State, 245 Ga. 141, 149-150,
263 S.E.2d
666, 671-672 (1980). As we held in
United States v.
Tucker, 404 U. S. 443,
404 U. S.
447-449 (1972), even in a noncapital sentencing
proceeding, the sentence must be set aside if the trial court
relied at least in part on "misinformation of constitutional
magnitude" such as prior uncounseled convictions that were
unconstitutionally imposed.
See Townsend v. Burke,
334 U. S. 736,
334 U. S.
740-741 (1948) (reversing a sentence imposed on
uncounseled defendant because it was based on "extensively and
materially false" assumptions concerning the defendant's prior
criminal record).
[
Footnote 24]
Petitioner acknowledges that, if an invalid statutory
aggravating circumstance were supported by material evidence not
properly before the jury, a different case would be presented.
Brief for Petitioner 13; Supplemental Memorandum for Petitioner 18;
Tr. of Oral Arg. 14, 18-20. We need not decide in this case whether
the death sentence would be impaired in other circumstances, for
example, if the jury's finding of an aggravating circumstance
relied on materially inaccurate or misleading information.
[
Footnote 25]
The Georgia Supreme Court's affirmance of this case on direct
appeal implicitly approves the jury instructions as an accurate
reflection of state law. Moreover, the instructions are entirely
consistent with the explanation of Georgia's statutory scheme given
in the Georgia Supreme Court's response to our certified question.
According to the response,
see supra at
462 U. S.
872,
"[u]nless at least one of the ten statutory aggravating
circumstances exists, the death penalty may not be imposed in any
event. If there exists at least one statutory aggravating
circumstance, the death penalty may be imposed, but the factfinder
has a discretion to decline to do so without giving any reason. . .
. In making the decision as to the penalty, the factfinder takes
into consideration all circumstances before it from both the
guiilt-innocence and the sentence phases of the trial."
250 Ga. at 100, 297 S.E.2d at 3-4. This is precisely what the
trial court told the jury:
"Now in arriving at your determinations in this regard, you are
authorized to consider all of the evidence received in court
throughout the trial before you. You are further authorized to
consider all facts and circumstances presented in extinuation
[
sic], mitigation and aggravation of punishment, as well
as such arguments as have been presented for the State and for the
Defense. . . . Unless one or more of these statutory aggravating
circumstances are proven beyond a reasonable doubt, you will not be
authorized to fix punishment at death. . . . If you fix punishment
at death by electrocution, you would recite in the exact words
which I have given you the one or more circumstances you found to
be proven beyond a reasonable doubt. . . . [If you recommend life
imprisonment] it would not be necessary for you to recite any
mitigating or aggravating circumstances as you may find, and you
would simply state in your verdict, We fix punishment at life in
prison."
App. 18-19.
See Zant v. Stephens, 456 U.S. at
456 U. S.
411-412, n. 1.
[
Footnote 26]
See n19,
supra.
JUSTICE WHITE, concurring in part and concurring in the
judgment.
In
Claassen v. United States, 142 U.
S. 140 (1891), the defendant in a criminal case was
found guilty on 5 of 11 counts on which the jury was instructed.
The verdict was a general one, and one 6-year sentence was imposed.
On writ of error, this Court affirmed the conviction and sentence,
saying that the first
"count and the verdict of guilty returned upon it being
sufficient to support the judgment and sentence, the question of
the sufficiency of the other counts need not be considered."
Id. at
142 U. S. 146.
Similarly, in
Barenblatt v. United States, 360 U.
S. 109 (1959), a defendant was convicted on each of five
counts, and a general sentence was imposed. The Court said,
id. at
360 U. S.
115:
"Since this sentence was less than the maximum punishment
authorized by the statute for conviction under any one Count, the
judgment below must be upheld if the conviction upon any of the
Counts is sustainable."
(Footnote omitted.)
Pinkerton v. United States,
328 U. S. 640,
328 U. S. 641,
n. 1 (1946);
Whitfield v. Ohio, 297 U. S 431, 438 (1936);
Abrams v. United States, 250 U. S. 616,
250 U. S. 619
(1919); and
Evans v. United States, 153 U.
S. 584,
153 U. S. 595
(1894), were similar holdings. It is therefore clear that in cases
such as
Claassen and
Barenblatt, there is no
Stromberg, Thomas, or
Street problem.
Page 462 U. S. 892
Here, the jury imposing the sentence found three aggravating
circumstances and based on all the evidence imposed the death
sentence. One of the aggravating circumstances was found invalid on
an intervening appeal in another case, and the claim is that, under
Stromberg, Thomas, and
Street, the death sentence
must be set aside. I agree with the Court that there is no such
problem, since the evidence supporting the invalid aggravating
circumstance was properly before the jury. The Court, however,
suggests that, if the evidence had been inadmissible under the
Federal Constitution, there might be a
Stromberg, Thomas,
or
Street problem. The Court says,
ante at
462 U. S.
883:
"The jury's imposition of the death sentence after finding more
than one aggravating circumstance . . . is also not precisely the
same as the imposition of a single sentence of imprisonment after
guilty verdicts on each of several separate counts in a
multiple-count indictment, because the qualitatively different
sentence of death is imposed only after a channeled sentencing
procedure."
(Footnote omitted.) The Court thus suggests that the
Claassen-Barenblatt line of cases may not be applicable to
sentencing proceedings in capital punishment cases. I fail to grasp
the distinction, however, between those cases and the sentencing
procedures involved here. In
Claassen and
Barenblatt, there was only one sentence on several counts,
and one could be no surer there than here that the sentence did or
did not rest on any one of the counts. Those cases, however, would
sustain the sentence if it was authorized under any of the valid
counts.
Stromberg, Thomas, and
Street should no
more invalidate the single sentence in this case.
Thus in my view there would be no
Stromberg-Thomas-Street problem, as such, if the invalid
count had rested on constitutionally inadmissible evidence. But
since the jury is instructed to take into account all the evidence,
there would remain the question whether the inadmissible evidence
invalidates the sentence. Perhaps it would, but at least there
Page 462 U. S. 893
would be room for the application of the harmless error rule,
which would not be the case, it seems to me, under the
per
se rule of
Stromberg, Street, and
Thomas.
Except for the foregoing, I join the Court's opinion, and its
judgment as well.
JUSTICE REHNQUIST, concurring in the judgment.
While agreeing with the Court's judgment, I write separately to
make clear my understanding of the application of the Eighth and
Fourteenth Amendments to the capital sentencing procedures used in
this case. I agree with the Court's treatment of the factual and
procedural background of the case, and with its characterization of
the questions presented for review. In brief, we must decide
whether the procedure by which Georgia imposes the death sentence
comports with the Eighth and Fourteenth Amendments; whether, in
this case, imposition of the death sentence violates the rule of
Stromberg v. California, 283 U. S. 359
(1931); and whether the erroneous presentation to a jury of an
invalid aggravating circumstance requires vacating the death
sentence imposed by that jury.
I
The Georgia death sentencing procedure is comprehensively
detailed in the statutes of the State, decisions of the Georgia
courts, the opinion issued by the Georgia Supreme Court in response
to the question certified by this Court,
Zant v. Stephens,
456 U. S. 410
(1982), and the jury instructions in this case. As these materials
reveal, two separate proceedings are necessary to imposition of the
death sentence in Georgia. The first stage is simply a traditional
criminal trial on the question of guilt or innocence. If the
defendant is found guilty of a capital offense, a separate
sentencing proceeding is then conducted.
At this second proceeding, the State and the defendant are
permitted to introduce a wide range of evidence in "extenuation,
mitigation, and aggravation of punishment." Ga.Code
Page 462 U. S. 894
§ 27-2503 (1978). The sentencing body is then directed to make
two separate decisions. First, it decides whether any of a number
of specific, statutorily defined aggravating circumstances have
been proved beyond a reasonable doubt. Ga.Code § 27-2534.1(b)
(1978). In addition, the jury is instructed that, if it finds one
or more of the statutory aggravating circumstances, it is to make
the further judgment whether the defendant deserves the death
sentence. In making this second decision, statutory aggravating
circumstances found by the sentencer are considered, together with
all the other evidence in mitigation and aggravation. The sentencer
is not, however, instructed to formally "weigh" the aggravating
circumstances against the mitigating circumstances. If a death
sentence is imposed, then the case receives both conventional
appellate consideration and expedited direct review by the Supreme
Court of Georgia.
Respondent challenges the Georgia death sentencing system as
violative of the Eighth Amendment, on the grounds that it fails
adequately to channel the discretion of the sentencing body. In
particular, respondent urges that the absence of an instruction
that the sentencer must balance statutory aggravating circumstances
against mitigating circumstances before imposing the death sentence
renders the scheme unconstitutional under the reasoning in
Furman v. Georgia, 408 U. S. 238
(1972). Respondent's claim is, in my opinion, completely foreclosed
by this Court's precedents.
Except in minor detail, Georgia's current system is identical to
the sentencing procedure we held constitutional in
Gregg v.
Georgia, 428 U. S. 153
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.);
id.
at
428 U. S. 207
(WHITE, J., concurring in judgment). The joint opinion in
Gregg fully recognized that the Georgia scheme did not
direct the sentencing body that statutory aggravating and
mitigating circumstances were to be weighed against each other in
any formal sense. This is evident from its careful description of
the Georgia scheme,
id. at
428 U. S.
196-197, and its treatment of the
Page 462 U. S. 895
Model Penal Code's proposed system,
id. at
428 U. S. 193,
where the fact that the sentencing body is formally instructed to
weigh aggravating and mitigating circumstances was specifically
noted. Notwithstanding the lack of an explicit "balancing"
directive, the joint opinion upheld the statutory scheme since,
taken as a whole, it provided the sentencing authority with
sufficient guidance to prevent the "freakish" imposition of death
barred in
Furman. Likewise, in JUSTICE WHITE's
concurrence, 428 U.S. at
428 U. S. 211,
the role of aggravating circumstances was squarely discussed, and
approved. To accept respondent's contention that the sentencing
body must be specifically instructed to balance statutory
aggravating circumstances against mitigating circumstances would
require rejecting the judgment in
Gregg that the Georgia
statute provided the sentencing body with adequate guidance to
permit it to impose death. [
Footnote
2/1]
II
Respondent next contends that
Stromberg v. California,
283 U. S. 359
(1931), requires that his death sentence be set aside. Respondent's
argument rests on the fact that one of the three aggravating
circumstances specified by the jury in
Page 462 U. S. 896
his case was later found invalid under a state court decision
holding the statutory definition of the circumstance impermissibly
vague under the United States Constitution.
Arnold v.
State, 236 Ga. 534,
224 S.E.2d 386
(1976). [
Footnote 2/2] Respondent
reasons that
Stromberg establishes a rule requiring that
any general verdict returned by a factfinder be set aside if it is
based, even in part, upon "an invalid factor." Supplemental Brief
for Respondent 8. According to respondent, because one of the
aggravating circumstances found by the jury was invalid, the
general verdict of death returned by the jury fails the
Stromberg test.
Careful examination of
Stromberg, cases following that
decision, and the role of aggravating circumstances in a jury's
imposition of the death penalty compels rejection of respondent's
claim.
Stromberg presented a straightforward case. The
defendant was convicted for violating a California statute
prohibiting the display of a red flag for any of three separate
purposes. At trial, the jury was instructed that the defendant
should be convicted if he acted with any one of the proscribed
purposes; it returned a general verdict of guilty without
indicating which purpose it believed motivated the defendant. This
Court concluded that the first of the clauses of the statute
detailing impermissible purposes was unconstitutional, and held
that it was unnecessary to decide the validity of the remaining two
clauses. The Court observed that the prosecutor had "emphatically
urged upon the jury that they could convict the appellant under the
first clause alone, without regard to the other clauses." 283 U.S.
at
283 U. S. 368.
It concluded that it was "impossible to say under which clause of
the statute the conviction was obtained,"
ibid., and that,
given this complete uncertainty, the conviction could not stand.
See also Williams v. North
Carolina, 317 U.S.
Page 462 U. S. 897
287,
317 U. S. 292
(1942);
Cramer v. United States, 325 U. S.
1,
325 U. S. 36 n.
45 (1945);
Terminiello v. Chicago, 337 U. S.
1,
337 U. S. 5-6
(1949),
Yates v. United States, 354 U.
S. 298,
354 U. S.
311-312 (1957). Of course, if the jury does indicate
which statutory elements supported its verdict, and if these are
valid, then
Stromberg is inapplicable.
As the Court points out, the
Stromberg doctrine
subsequently was extended -- albeit without lengthy analysis. In
Street v. New York, 394 U. S. 576,
394 U. S.
586-590 (1969), the Court vacated a conviction, based on
a single-count indictment, for casting contempt on the United
States flag. The statute under which petitioner was convicted
criminalized casting contempt upon the flag by "words or act."
Id. at
394 U. S. 578.
The information filed against petitioner alleged that he violated
this statute because he both burned the flag and shouted derogatory
statements about it. Likewise, the State introduced evidence at the
bench trial of both the petitioner's act and his speech. The Court
concluded that petitioner's constitutional rights would have been
violated had he been punished for his speech. It thought, moreover,
that the trial judge might have rested his finding
solely
on petitioner's speech, which presented a situation similar to that
in
Stromberg.
In addition, however, the Court believed that, on the record of
the case, there was an "unacceptable danger that the trier of fact
. . . regarded the two acts as
intertwined' and . . . rested
the conviction on both together." 394 U.S. at 394 U. S. 588.
In short, when an element of a crime is defined to include
constitutionally protected actions, and when the State alleges,
argues, and offers proof that the defendant's protected conduct
satisfied the element, then a general verdict of guilty must be set
aside, even if the State also alleged and proved another course of
conduct that could have satisfied the element. As in
Stromberg, however, the Court also noted that, when the
record indicates that the jury's verdict did not rest on an
"intertwined" combination of protected and
Page 462 U. S. 898
unprotected conduct, but instead rested sufficiently on
unprotected conduct, then the verdict would stand.
Neither the
Stromberg line of cases nor
Street
provides respondent with appreciable support. I agree with the
Court that the
Stromberg rule is plainly distinguishable,
since the Jury explicitly returned two concededly valid aggravating
circumstances, thereby conclusively negating the inference that it
rested
solely on the invalid circumstance. Likewise, I
conclude that the analysis in
Street is inapposite.
[
Footnote 2/3] It is helpful in
explaining why this is the case to discuss separately the two
decisions made by the sentencing body during the Georgia death
penalty proceedings. I initially consider the applicability of
Street to the jury's first decision, that is, the finding
of statutory aggravating circumstances.
As indicated above,
Street explicitly stated that its
rule regarding the treatment of aggravating circumstances is
inapplicable
"when the indictment or information is in several counts and the
conviction is explicitly declared to rest on findings of guilt on
certain of those counts, for in such instances there is positive
evidence that the trier of fact considered each count on its own
merits and separately from the others."
394 U.S. at
394 U. S. 588
(footnote omitted). This exception to the
Street rule
extends to the jury's determination in this case that certain
specified aggravating circumstances existed. The jury received
separate instructions as to each of several aggravating
circumstances, and returned a verdict form separately listing three
circumstances. The fact that one of these subsequently proved to be
invalid does not affect the validity of the remaining two jury
findings, just as the reversal on appeal of one of several
convictions returned to separate
Page 462 U. S. 899
counts does not affect the remaining convictions. There was
"positive evidence" that Stephens' jury considered each aggravating
circumstance "on its own merits and separately from the others."
Ibid. Because of this,
Street provides no basis
for questioning the jury's first decision, which, if supported,
permitted it to go further and consider whether Stephens deserved
the death sentence.
Street's logic is even less applicable to a Georgia
death jury's second decision, namely, that the defendant deserved
the death sentence. Under respondent's theory, the jury's verdict
of death was based in part on an aggravating circumstance that
later proved invalid, and which, according to respondent must thus
fall under the rule of
Street. Whatever its proper
application elsewhere,
Street's rule cannot fairly be
extended to the sentencing context. As discussed below, the
significant differences between the role of aggravating
circumstances in the jury's decision to impose the death sentence
and the role played by instructions or allegations in a jury's
determination of guilt preclude applying
Street to the
sentencing context.
The rule relied upon by respondent was developed in a situation
where a factfinder returns a verdict of guilty on a specific
criminal charge. In returning this verdict, the jury decides
whether the defendant committed a specific set of defined acts with
a particular mental state. These elements, each of which is
necessary to the verdict of guilty, are specifically and carefully
enumerated and defined in the indictment or information and the
instructions to the jury. Only evidence relevant to the particular
elements alleged by the State is admissible, and, even then,
subject to exclusion of prejudicial evidence which might distract
the jury from the specific factfinding task it performs. Based on
this evidence, the jury decides whether each of the elements
constituting the offense was proved beyond a reasonable doubt. The
Court's observation in
Williams v. New York, 337 U.
S. 241,
337 U. S.
246-247 (1949), accurately captures the character of the
procedure
Page 462 U. S. 900
leading to a criminal conviction:
"In a trial before verdict, the issue is whether a defendant is
guilty of having engaged in certain criminal conduct of which he
has been specifically accused.Rules of evidence have been fashioned
for criminal trials . . . narrowly confin[ing] the trial contest. .
. ."
The decision by a Georgia death jury at the final stage of its
deliberations to impose death is a significantly different decision
from the model just described. A wide range of evidence is
admissible on literally countless subjects:
"We have long recognized that, '[f]or the determination of
sentences, justice generally requires . . . that there be taken
into account the
circumstances of the offense, together
with the
character and propensities of the offender.'"
Gregg, 428 U.S. at
428 U. S. 189
(emphasis added). In considering this evidence, the jury does not
attempt to decide whether particular elements have been proved, but
instead makes a unique, individualized judgment regarding the
punishment that a particular person deserves.
See Lockett v.
Ohio, 438 U. S. 586,
438 U. S.
602-605 (1978).
The role of aggravating circumstances in making this judgment is
substantially more limited than the role played by jury
instructions or allegations in an indictment in an ordinary trial.
In Georgia, aggravating circumstances serve principally to restrict
the class of defendants subject to the death sentence; once a
single aggravating circumstance is specified, the jury then
considers all the evidence in aggravation-mitigation in deciding
whether to impose the death penalty, see Part I,
supra. An
aggravating circumstance in this latter stage is simply one of the
countless considerations weighed by the jury in seeking to judge
the punishment appropriate to the individual defendant.
If an aggravating circumstance is revealed to be invalid, the
probable effect of this fact alone on the jury's second decision --
whether the death sentence is appropriate -- is minimal. If one of
the few theories of guilt presented to the jury
Page 462 U. S. 901
in the trial judge's instructions, or the indictment, proves
invalid, there is a substantial risk that the jury may have based
its verdict on an improper theory. This follows from the
necessarily limited number of theories presented to the jury, and
from the fact that the jury's decisionmaking is carefully routed
along paths specifically set out in the instructions. When an
aggravating circumstance proves invalid, however, the effect
ordinarily is only to diminish the probative value of one of
literally countless factors that the jury considered. The inference
that this diminution would alter the result reached by the jury is
all but nonexistent. Given this, the rule developed in
Street simply cannot be applied sensibly to sentencing
decisions resulting from proceedings involving aggravating
circumstances. Instead, as developed in the following Part, a
different analysis has been applied to the question whether to set
aside sentencing decisions based in part upon invalid factors.
III
Respondent contends next that, even if
Street is
inapplicable, the erroneous submission to the jury of an
instruction which we are bound to regard as unconstitutionally
vague,
see n 3,
supra, must have had sufficient effect on the jury's
deliberations to require vacating its verdict. Although our prior
decisions are not completely consistent regarding the effect of
constitutional error in sentencing proceedings on the sentence
imposed on the defendant, in general, sentencing decisions are
accorded far greater finality than convictions.
Ordinarily, a sentence within statutory limits is beyond
appellate review.
Gore v. United States, 357 U.
S. 386,
357 U. S. 393
(1958). In
Street, 394 U.S. at
394 U. S. 588,
n. 9, we cited with approval to several of a long line of
sentencing decisions. In
Claassen v. United States,
142 U. S. 140
(1891);
Pinkerton v. United States, 328 U.
S. 640 (1946); and
Barenblatt v. United States,
360 U. S. 109
(1959), defendants were convicted on several separate counts and
received "general sentences,"
Page 462 U. S. 902
not linked to any one or combination of the counts. The
defendants then challenged all their convictions on writ of error
or appeal. The Court, following a well-settled rule, stated in
Barenblatt:
"Since this sentence was less than the maximum punishment
authorized by the statute for conviction under any one Count, the
judgment below must be upheld if the conviction upon any of the
Counts is sustainable."
Id. at
360 U. S. 115
(footnote omitted). In
Claassen, we said:
"[I]t is settled law in this court, and in this country
generally, that, in any criminal case, a general verdict and
judgment on an indictment or information containing several counts
cannot be reversed on error if any one of the counts is good and
warrants the judgment, because, in the absence of anything in the
record to show the contrary, the presumption of law is that the
court awarded sentence on the good count only."
142 U.S. at
142 U. S.
146-147.
The practical basis for the rules articulated in
Gore
and the
Claassen line of cases is clear. As indicated
above, sentencing decisions rest on a far-reaching inquiry into
countless facts and circumstances, and not on the type of proof of
particular elements that returning a conviction does. The fact that
one of the countless considerations that the sentencer would have
taken into account was erroneous, misleading, or otherwise
improperly before him ordinarily can be assumed not to have been a
necessary basis for his decision. Nonetheless, in limited cases,
noncapital sentencing decisions are vacated for resentencing.
In
United States v. Tucker, 404 U.
S. 443 (1972), two uncounseled -- and therefore
unconstitutionally obtained -- convictions were introduced against
the defendant in the sentencing proceeding. The Court observed that
the sentencing judge gave "explicit" and "specific" attention,
id. at
404 U. S. 444,
404 U. S. 447,
to these convictions. Moreover, it noted that the defendant would
have "appeared in a dramatically different light" had the true
character of the unconstitutional convictions been known: the judge
would have been dealing with a
Page 462 U. S. 903
man unconstitutionally imprisoned, beginning at age 17, for more
than 10 years, including 5 1/2 years on a chain gang.
Id.
at
404 U. S. 448.
Finally, the Court reemphasized the unconstitutional character of
the respondent's prior convictions, and opined that to permit his
sentence to stand would "erode" the rule in
Gideon v.
Wainwright, 372 U. S. 335
(1963). Given all this, respondent's sentence was held improper,
and the case was remanded for resentencing.
Similarly, in
Townsend v. Burke, 334 U.
S. 736 (1948), an uncounseled defendant was sentenced
following a proceeding in which the trial judge explicitly and
repeatedly relied upon the incorrect assumption that the defendant
had been convicted of several crimes. The Court observed that
"[i]t is not the duration or severity of this sentence that
renders it constitutionally invalid; it is the careless or designed
pronouncement of sentence on a foundation so extensively and
materially false, which the prisoner had no opportunity to correct
by the services which counsel would provide, that renders the
proceedings lacking in due process."
Id. at
334 U. S.
741.
The approach taken in
Tucker, Townsend, and the
Claassen line of cases begins with the presumption that,
since the sentencer's judgment rested on countless variables, an
error made in one portion of the sentencing proceeding ordinarily
should not affect the sentence. This presumption is most plainly
revealed by the
Claassen line of cases, where a sentence
will stand even if it turns out that the crimes for which the
defendant was sentenced had not all been committed. Nonetheless,
the defendant may adduce evidence that the sentencing body likely
would have acted differently had the error not occurred. In order
to prevail on such a claim, however, we have required a convincing
showing that the introduction of specific constitutionally infirm
evidence had an ascertainable and "dramatic" impact on the
sentencing authority.
See United States v. Tucker, supra,
Townsend v. Burke, supra. Of course, a more careful
application of this standard is appropriate in capital cases.
Page 462 U. S. 904
In the present case, however, the erroneous submission to the
jury of an invalid aggravating circumstance simply cannot satisfy
whatever standard may plausibly be based on the cases discussed
above. As the Court points out, the only real impact resulting from
the error was that evidence properly before the jury was capable of
being fit within a category that the judge's instructions labeled
"aggravating." The evidence in question -- respondent's prior
convictions -- plainly was an aggravating factor, which, as we held
in
Gregg, the jury was free to consider. The fact that the
instruction gave added weight to this no doubt played some role in
the deliberations of some jurors. Yet the Georgia Supreme Court was
plainly right in saying that the "mere fact that some of the
aggravating circumstances presented were improperly designated
statutory'" had "an inconsequential impact on the jury's
decision regarding the death penalty." 250 Ga. 97, 100, 297 S.E.2d 1,
4 (1982). The
plurality recognized in Lockett v. Ohio, 438 U.S. at
438 U. S. 605,
that there can be "no perfect procedure for deciding in which cases
governmental authority should be used to impose death." Whatever a
defendant must show to set aside a death sentence, the present case
involved only a remote possibility that the error had any effect on
the jury's judgment; the Eighth Amendment did not therefore require
that the defendant's sentence be vacated.
[
Footnote 2/1]
In
Jurek v. Texas, 428 U. S. 262
(1976), we approved a death penalty statute providing even less
explicitly for the type of "weighing" that respondent claims is
necessary. In Texas, persons convicted of five types of homicide
faced a second proceeding in which the jury was required to answer
three questions -- whether the defendant's acts were committed
deliberately and with the reasonable expectation that they would
result in death; whether there was a probability that the defendant
would commit violent acts constituting a continuing threat to
society; and whether the defendant's acts were in response to some
sort of provocation. As the joint opinion recognized, the sole
function of the "aggravating circumstances" in the Texas system was
to "narro[w] the categories of murders for which a death sentence
may ever be imposed,"
id. at
428 U. S. 270.
Since these "aggravating circumstances" were only considered at the
guilt determination phase of trial, not at sentencing, the system
could not contain a requirement that the jury "balance" these
circumstances against mitigating circumstances -- as respondent
contends is constitutionally required in this case.
[
Footnote 2/2]
I assume, for purposes of this decision, that
Arnold
was correctly decided, and that it was properly applied to
respondent's case. I express no view as to the correctness of that
decision or its application.
[
Footnote 2/3]
As the Court points out,
Street properly has been
confined to situations where there is a substantial risk that the
jury has imposed criminal punishment because of activity protected
by the Constitution. Respondent's history of violent conduct, on
which the invalid aggravating circumstance was based, plainly falls
outside this category, and
Street therefore is
inapplicable to this case.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
Even if I accepted the prevailing view that the death penalty
may constitutionally be imposed under certain circumstances, I
could scarcely join in upholding a death sentence based in part
upon a statutory aggravating circumstance so vague that its
application turns solely on the "whim" of the jury.
Arnold v.
State, 236 Ga. 534, 541,
224 S.E.2d
386, 391 (1976).
The submission of the unconstitutional statutory aggravating
circumstance to the jury cannot be deemed harmless error on the
theory that,
"in Georgia, the finding of an aggravating
Page 462 U. S. 905
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."
Ante at
462 U. S. 874
(emphasis added). If the trial judge's instructions had apprised
the jury of this theory, it might have been proper to assume that
the unconstitutional statutory factor did not affect the jury's
verdict. But such instructions would have suffered from an even
more fundamental constitutional defect -- a failure to provide any
standards whatsoever to guide the jury's actual sentencing
decision. If this Court's decisions concerning the death penalty
establish anything, it is that a capital sentencing scheme based on
"standardless jury discretion" violates the Eighth and Fourteenth
Amendments.
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 195,
n. 47 (1976) (opinion of Stewart, POWELL, and STEVENS,JJ.), citing
Furman v. Georgia, 408 U. S. 238
(1972).
In any event, the jury that sentenced respondent to death was
never informed of this "threshold" theory, which was invented for
the first time by the Georgia Supreme Court more than seven years
later. Under the instructions actually given, a juror might
reasonably have concluded,
as has this Court in construing
essentially identical instructions, that any aggravating
circumstances,
including statutory aggravating
circumstances, should be balanced against any mitigating
circumstances in the determination of the defendant's sentence.
There is no way of knowing whether the jury would have sentenced
respondent to death if its attention had not been drawn to the
unconstitutional statutory factor.
I
I continue to adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment forbidden by the Eighth
and Fourteenth Amendments.
See Gregg v. Georgia, supra, at
428 U. S. 231
(MARSHALL, J., dissenting);
Furman v. Georgia, supra, at
408 U. S. 314
(MARSHALL, J., concurring).
Page 462 U. S. 906
II
Today the Court upholds a death sentence that was based in part
on a statutory aggravating circumstance which the State concedes
was so amorphous that it invited "subjective decisionmaking without
. . . minimal, objective guidelines for its application."
Arnold v. State, supra, at 541, 224 S.E.2d at 391. In
order to reach this surprising result, the Court embraces the
theory, which it infers from the Georgia Supreme Court's response
to this Court's certified question, [
Footnote 3/1] that the only function of statutory
aggravating circumstances in Georgia is to screen out at the
threshold defendants to whom none of the 10 circumstances applies.
According to this theory, once 1 of the 10 statutory factors has
been found, they drop out of the picture entirely and play no part
in the jury's decision whether to sentence the defendant to death.
Relying on this "threshold" theory, the Court concludes that
Page 462 U. S. 907
the submission of the unconstitutional statutory factor did not
prejudice respondent.
If the jury instructions given some eight years ago were
consistent with this new theory, we could assume that the jury did
not focus on the vague statutory aggravating circumstance in making
its actual sentencing decision. But if the jury had been so
instructed, the instructions would have been constitutionally
defective for a more basic reason, since they would have left the
jury totally without guidance once it found a single statutory
aggravating circumstance.
A
Until this Court's decision in
Furman v. Georgia in
1972, the capital sentencing procedures in most States delegated to
judges and juries plenary authority to decide when a death sentence
should be imposed. The sentencer was given "practically untrammeled
discretion to let an accused live or insist that he die."
Furman v. Georgia, supra, at
408 U. S. 248
(Douglas, J., concurring) (footnote omitted).
In
Furman, this Court held that the system of capital
punishment then in existence in this country was incompatible with
the Eighth and Fourteenth Amendments. As was later recognized in
Gregg v. Georgia, Furman established one basic proposition
if it established nothing else: "where the ultimate punishment of
death is at issue, a system of standardless jury discretion
violates the Eighth and Fourteenth Amendments." 408 U.S. at
408 U. S. 195,
n. 47 (opinion of Stewart, POWELL, and STEVENS, JJ.). The basic
teaching of
Furman is that a State may not leave the
decision whether a defendant lives or dies to the unfettered
discretion of the jury, since such a scheme is "pregnant with
discrimination," 408 U.S. at
408 U. S. 257
(Douglas, J., concurring), and inevitably results in death
sentences which are "wantonly and . . . freakishly imposed,"
id. at
408 U. S. 310
(Stewart, J., concurring), and for which
"there is no meaningful basis for distinguishing the few cases
in which [the death penalty] is imposed from the many
Page 462 U. S. 908
cases in which it is not."
Id. at
408 U. S. 313
(WHITE, J., concurring). [
Footnote
3/2]
See Gregg v. Georgia, 428 U.S. at
428 U. S. 195,
n. 47 (noting that
Furman "ruled that death sentences
imposed under statutes that left juries with untrammeled discretion
to impose or withhold the death penalty violated the Eighth and
Fourteenth Amendments").
Four years after
Furman was decided, this Court upheld
the capital sentencing statutes of Georgia, Florida, and Texas
against constitutional attack, concluding that those statutes
contained safeguards that promised to eliminate the constitutional
deficiencies found in
Furman. See Gregg v. Georgia;
Proffitt v. Florida, 428 U. S. 242
(1976);
Jurek v. Texas, 428 U. S. 262
(1976). The Court's conclusion was based on the premise that the
statutes ensured that sentencers would be
"given guidance regarding the factors about the crime and the
defendant that the State, representing organized society, deems
particularly relevant to the sentencing decision."
Gregg v. Georgia, 428 U.S. at
428 U. S. 192
(opinion of Stewart, POWELL, and STEVENS, JJ.). [
Footnote 3/3] The Court assumed that the
identification
Page 462 U. S. 909
of specific statutory aggravating circumstances would put an end
to standardless sentencing discretion:
"These procedures require the jury to consider the circumstances
of the crime and the criminal before it recommends sentence. No
longer can a Georgia jury do as Furman's jury did: reach a finding
of the defendant's guilt and then, without guidance or direction,
decide whether he should live or die. Instead,
the jury's
attention is directed to the specific circumstances of the
crime: Was it committed in the course of another capital
felony? Was it committed for money? Was it committed upon a peace
officer or judicial officer? Was it committed in a particularly
heinous way or in a manner that endangered the lives of many
persons? In addition,
the jury's attention is focused on the
characteristics of the person who committed the crime: Does he
have a record of prior convictions for capital offenses? Are there
any special facts about this defendant that mitigate against
imposing capital punishment. . . . As a result, while some jury
discretion still exists,
'the discretion to be exercised is
controlled by clear and objective standards so as to produce
nondiscriminatory application.'"
Id. at
428 U. S.
197-198 (opinion of Stewart, POWELL, and STEVENS, JJ.)
(emphasis added; footnote and citation omitted).
In
Godfrey v. Georgia, 446 U.
S. 420 (1980), the Court reiterated that a State "must
channel the sentencer's discretion by
clear and objective
standards' that provide 'specific and detailed guidance.'"
Id. at 446 U. S. 428
(plurality opinion) (citations
Page 462 U. S. 910
omitted). The Court reaffirmed the teaching of
Furman
and
Gregg that
"the penalty of death may not be imposed under sentencing
procedures that create a substantial risk that the punishment will
be inflicted in an arbitrary and capricious manner."
446 U.S. at
446 U. S.
427.
"[I]f a State wishes to authorize capital punishment, it has a
constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of the
death penalty."
Id. at
446 U. S.
428.
B
Today we learn for the first time that the Court did not mean
what it said in
Gregg v. Georgia. We now learn that the
actual decision whether a defendant lives or dies may still be left
to the unfettered discretion of the jury. Although we were assured
in
Gregg that sentencing discretion was "
to be
exercised . . . by clear and objective standards,'" 428 U.S. at
428 U. S. 198
(opinion of Stewart, POWELL, and STEVENS, JJ.), we are now told
that the State need do nothing whatsoever to guide the jury's
ultimate decision whether to sentence a defendant to death or spare
his life.
Under today's decision, all the State has to do is require the
jury to make some threshold finding. Once that finding is made, the
jurors can be left completely at large, with nothing to guide them
but their whims and prejudices. They need not even consider any
statutory aggravating circumstances that they have found to be
applicable. Their sentencing decision is to be the product of their
discretion, and of nothing else.
If this is not a scheme based on "standardless jury discretion,"
Gregg v. Georgia, 428 U.S. at
428 U. S. 195,
n. 47 (opinion of Stewart, POWELL, and STEVENS, JJ.), I do not know
what is. Today's decision makes an absolute mockery of this Court's
precedents concerning capital sentencing procedures. There is no
point in requiring state legislatures to identify specific
aggravating circumstances if sentencers are to be left free to
ignore them in deciding which defendants are to die. If this is all
Gregg v. Georgia stands for, the States may as well be
Page 462 U. S. 911
permitted to reenact the statutes that were on the books before
Furman.
The system of discretionary sentencing that the Court approves
today differs only in form from the capital sentencing procedures
that this Court held unconstitutional more than a decade ago. The
only difference between Georgia's pre-
Furman capital
sentencing scheme and the "threshold" theory that the Court
embraces today is that the unchecked discretion previously
conferred in all cases of murder is now conferred in cases of
murder with one statutory aggravating circumstance. But merely
circumscribing the category of cases eligible for the death penalty
cannot remove from constitutional scrutiny the procedure by which
those actually sentenced to death are selected.
More than a decade ago, this Court struck down an Ohio statute
that permitted a death sentence only if the jury found that the
victim of the murder was a police officer, but gave the jury
unbridled discretion once that aggravating factor was found.
Duling v. Ohio, 408 U.S. 936 (1972),
summarily
rev'g 21 Ohio St.2d 13, 254 N.E.2d 670 (1970).
See
Ohio Rev.Code Ann. § 2901.04 (1953). There is no difference of any
consequence between the Ohio scheme held impermissible in
Duling and the "threshold" scheme that the Court endorses
today. If, as
Duling establishes, the Constitution
prohibits a State from defining a crime (such as murder of a police
officer) and then leaving the decision whether to impose the death
sentence to the unchecked discretion of the jury, it must also
prohibit a State from defining a lesser crime (such as murder) and
then permitting the jury to make a standardless sentencing decision
once it has found a single aggravating factor (such as that the
victim was a police officer). In both cases, the ultimate decision
whether the defendant will be killed is left to the discretion of
the sentencer, unguided by
any legislative standards.
[
Footnote 3/4] Whether a
particular
Page 462 U. S. 912
preliminary finding was made at the guilt phase of the trial or
at the sentencing phase is irrelevant; a requirement that the
finding be made at the sentencing phase in no way channels the
sentencer's discretion once that finding has been made. [
Footnote 3/5] If the Constitution forbids
one form of standardless discretion, it must forbid the other as
well.
III
A
In any event, the jury that sentenced respondent to death was
never apprised of the "threshold" theory relied upon by the Court.
There is no basis for the Court's assumption,
Page 462 U. S. 913
ante at
462 U. S. 891,
that the jury did not attribute special significance to the
statutory aggravating circumstances and did not weigh them, along
with any other evidence in aggravation, against the evidence
offered by respondent in mitigation.
In the first place,
"everything about the judge's charge highlighted the importance
of the aggravating circumstances. Not only were the circumstances
submitted to the jury in writing, but also the jury was, in turn,
required to write down each and every aggravating circumstance that
it found to be established beyond a reasonable doubt. . . . The
jury instructions provide absolutely no indication that, after
carefully considering each of the statutory aggravating
circumstances submitted by the trial judge, the jury should, or
even could, discard the list of officially sanctioned grounds for
imposing the death penalty in deciding whether to actually sentence
respondent to death."
Zant v. Stephens, 456 U. S. 410,
456 U. S. 427
(1982) (MARSHALL, J., dissenting). In deciding whether respondent
deserved to die, the jurors might well have deemed his prior
assaults unimportant if the judge had not specifically focused on
them in his charge.
Second, the Court's assertion that,
"in Georgia, the finding of an aggravating circumstance does not
play any role in guiding the sentencing body in the exercise of its
discretion,"
ante at
462 U. S. 874,
is flatly inconsistent with this Court's own previous
characterizations of the function of statutory aggravating
circumstances in the Georgia scheme. In
Gregg v. Georgia,
where the jury instructions were essentially identical to those
given here, [
Footnote 3/6] the
joint opinion of Justices Stewart,
Page 462 U. S. 914
POWELL, and STEVENS took great pains to point out that the
statutory aggravating circumstances served to apprise the sentencer
"of the information relevant to the imposition of sentence and [to]
provid[e] standards to guide its use of the information." 428 U.S.
at
428 U. S. 195.
There was not the slightest hint that the statutory factors are
relevant only to the threshold determination of whether the
defendant is eligible to receive the death penalty. On the
contrary, the joint opinion emphasized that they informed the
sentencer of "the factors . . . that the State . . . deems
particularly relevant to the sentencing decision."
Id. at
428 U. S. 192
(emphasis added). If it had been thought that statutory aggravating
circumstances were to play only a threshold role in the sentencing
process, it would have made no sense at all to say that a jury's
verdict identifying one or more of those circumstances served to
apprise appellate courts of "the factors it relied upon
in
reaching its decision."
Id. at
428 U. S. 195
(emphasis added). The very premise of the "threshold" theory
adopted today is that statutory aggravating circumstances are
not relied upon by the jury in reaching its ultimate
sentencing decision, but are considered only in deciding whether
the defendant is eligible to receive the death penalty.
The Court's assumption that respondent's jury did not balance
aggravating circumstances against mitigating circumstances is also
inconsistent with this Court's characterization of the almost
identical instructions given in
Coker v. Georgia,
433 U. S. 584
(1977) (plurality opinion).
See App. in
Coker v.
Georgia, O.T. 1976, No. 75-5444, pp. 298-302. In
Coker, as in this case, the jury was not expressly
instructed to weigh aggravating against mitigating circumstances,
but the plurality opinion sensibly recognized that such a weighing
is inherent in any determination of whether mitigating
circumstances warrant a life sentence notwithstanding the existence
of aggravating circumstances:
"The jury was instructed that it could consider as aggravating
circumstances whether the rape had been committed by a person with
a prior record of conviction
Page 462 U. S. 915
for a capital felony and whether the rape had been committed in
the course of committing another capital felony, namely, the armed
robbery of Allen Carver. The court also instructed, pursuant to
statute, that even if aggravating circumstances were present, the
death penalty need not be imposed
if the jury found they were
outweighed by mitigating circumstances. . . ."
433 U.S. at
433 U. S.
587-590 (emphasis added).
I would like to know how the jury that sentenced respondent to
death in 1975 could have known that statutory aggravating
circumstances were to play only a threshold role in their
deliberations, when this Court itself has interpreted essentially
identical instructions to require a weighing of aggravating and
mitigating circumstances, and as recently as Last Term found it
necessary to ask the Georgia Supreme Court to clarify what the
instructions in this case meant. We are presented with
"different and conflicting theories regarding a charge designed
to guide the jury . . . , and yet we are asked to sustain the
[death sentence] on the assumption that the jury was properly
guided."
Bollenbach v. United States, 326 U.
S. 607,
326 U. S. 613
(1946). For my part, I believe that a death sentence "ought not to
rest on an equivocal direction to the jury on a basic issue."
Ibid. It is patently unfair to assume that the jury that
sentenced respondent somehow understood that statutory aggravating
circumstances were to receive no special weight, and were not to be
balanced against mitigating circumstances. Respondent is
"entitled to have the validity of [his sentence] appraised on
consideration of the case as it was tried and as the issues were
determined in the trial court,"
Cole v. Arkansas, 333 U. S. 196,
333 U. S. 202
(1948);
see Presnell v. Georgia, 439 U. S.
14,
439 U. S. 16
(1978), not on a theory that has been adopted for the first time
after the fact.
B
Once it is recognized that respondent's jury may well have
assumed that statutory aggravating circumstances deserve
Page 462 U. S. 916
special weight, the injustice of today's decision becomes
apparent. Under the Georgia capital sentencing procedure, the
sentencer always has discretion not to impose a death sentence
regardless of whether there is proof of one or more statutory
aggravating circumstances, and regardless of whether there are any
mitigating circumstances.
There is simply no way for this Court to know whether the jury
would have sentenced respondent to death if the unconstitutional
statutory aggravating circumstance had not been included in the
judge's charge. If it is important for the State to authorize and
for the prosecution to request the submission of a particular
statutory aggravating circumstance to the jury, "we must assume
that, in some cases, [that circumstance] will be decisive in the
[jury's] choice between a life sentence and a death sentence."
Gardner v. Florida, 430 U. S. 349,
430 U. S. 359
(1977) (opinion of STEVENS, J.).
As Justice Stewart pointed out in a similar case,
"under Georgia's capital punishment scheme,
only the trial
judge or jury can know and determine what to do when, upon
appellate review, it has been concluded that a particular
aggravating circumstance should not have been considered in
sentencing the defendant to death."
Drake v. Zant, 449 U. S. 999,
1001 (1980) (dissenting from denial of certiorari) (emphasis
added). Although the Court labors mightily in an effort to
demonstrate that submission of the unconstitutional statutory
aggravating circumstance did not affect the jury's verdict, there
is no escape from the conclusion -- reached by JUSTICE POWELL only
last Term -- that respondent was sentenced to death "under
instructions that could have misled the jury."
Zant v.
Stephens, 456 U.S. at
456 U. S. 429 (POWELL, J., dissenting). [
Footnote 3/7] Where a man's life is at stake, this
inconvenient fact should not be simply swept under the rug.
Page 462 U. S. 917
C
As I read the Court's opinion, the Court does not deny that
respondent might have received only a life sentence if the
unconstitutional aggravating circumstance had not been submitted to
the jury. Rather, the Court assumes that "the instruction did
induce the jury to place greater emphasis upon the respondent's
prior criminal record than it would otherwise have done."
Ante at
462 U. S. 888.
The Court concludes, however, that the submission of this
unconstitutional statutory factor does not amount to "a
constitutional defect in the sentencing process,"
ante at
462 U. S. 889,
because the jury could properly have been instructed to decide
whether either of the other two statutory factors applied and told
in addition that "in deciding whether or not [a death] sentence is
appropriate, you may consider the remainder of [the defendant's]
prior criminal record,"
ante at
462 U. S. 888.
The Court finds no constitutional difference between this charge
and the charge actually given.
Even assuming that it is proper to sustain a death sentence by
reference to a hypothetical instruction that might have been given
but was not, the Court errs in assuming that the hypothetical
instruction would satisfy the Constitution. As elaborated in Part
462 U. S.
above, this Court's decisions establish that the actual
determination whether a defendant shall live or die -- and not
merely the threshold decision whether he is eligible for a death
sentence -- must be guided by clear and objective standards. The
focus of the sentencer's attention must be directed to specific
factors whose existence or nonexistence can be determined with
reasonable certainty. Since the hypothetical instruction would fail
to channel the
Page 462 U. S. 918
sentencer's discretion in this fashion, the Court's assumption
that it would be constitutional is unwarranted. [
Footnote 3/8]
IV
For the foregoing reasons, I would vacate respondent's death
sentence.
[
Footnote 3/1]
Although the Court asserts that "the Georgia Supreme Court has
unambiguously advised us" that the finding of one or more of the
statutory aggravating circumstances "merely performs the function
of narrowing the category of persons convicted of murder who are
eligible for the death penalty," and serves no other function,
ante at
462 U. S. 875,
the Georgia Supreme Court's answer to our certified question is in
fact far from clear. The answer states only that the threshold "is
passed regardless of the number of statutory aggravating
circumstances found, so long as there is at least one," and that
thereafter the sentencer may consider "all the facts and
circumstances of the case." 250 Ga. 97, 100,
297 S.E.2d 1,
4 (1982). To
say that all aggravating circumstances, statutory and nonstatutory,
may be considered once one statutory circumstance has been found is
not to say that
"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."
Ante at
462 U. S. 874
(emphasis added). There is nothing in the Georgia Supreme Court's
opinion to suggest that jurors are not to give special attention to
statutory aggravating circumstances
throughout their
deliberations, rather than simply in making the threshold
determination whether any such circumstances apply.
Nonetheless, for the purposes of this opinion, I will assume
that the majority has correctly characterized the Georgia Supreme
Court's explanation of the Georgia capital sentencing
procedure.
[
Footnote 3/2]
JUSTICE BRENNAN and I were the other two Members of the
Furman majority. We concluded that the death penalty is in
all circumstances cruel and unusual punishment. 408 U.S. at
408 U. S. 257
(BRENNAN, J., concurring);
id. at
409 U. S. 314
(MARSHALL, J., concurring).
[
Footnote 3/3]
See Gregg v. Georgia, 428 U.S. at
428 U. S. 221
(WHITE, J., joined by BURGER, C.J., and REHNQUIST, J., concurring
in judgment) ("The Georgia Legislature has made an effort to
identify those aggravating factors which it considers necessary
and relevant to the question whether a defendant convicted
of capital murder should be be sentenced to death") (emphasis added
footnote omitted);
Proffitt v. Florida, 428 U.
S. 242,
428 U. S. 251
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.) ("The
sentencing authority in Florida, the trial judge, is directed to
weigh eight aggravating factors against seven mitigating factors to
determine whether the death penalty shall be imposed");
id. at
428 U. S. 260
(WHITE, J., joined by BURGER, C.J., and REHNQUIST, J., concurring
in judgment) ("although the statutory aggravating and mitigating
circumstances are not susceptible of mechanical application, they
are by no means so vague and overbroad as to leave the discretion
of the sentencing authority unfettered");
Jurek v. Texas,
428 U. S. 262,
428 U. S.
273-274 (1976) (opinion of Stewart, POWELL, and STEVENS,
JJ.) ("It . . . appears that . . . the Texas capital sentencing
procedure guides and focuses the jury's objective consideration of
the particularized circumstances of the individual offense and the
individual offender before it can impose a sentence of death");
id. at
428 U. S. 279
(WHITE, J., joined by BURGER, C.J., and REHNQUIST, J., concurring
in judgment) ("the Texas capital punishment statute limits the
imposition of the death penalty to a narrowly defined group of the
most brutal crimes and aims at limiting its imposition to similar
offenses occurring under similar circumstances").
[
Footnote 3/4]
This remains true whether or not the aggravating factor
satisfies the Court's requirement that it
"genuinely narrow the class of persons eligible for the death
penalty and . . . reasonably justify the imposition of a more
severe sentence on the defendant compared to others found guilty of
murder."
Ante at
462 U. S.
877.
[
Footnote 3/5]
This Court has repeatedly recognized that a capital sentencing
statute does not satisfy the Constitution simply because it
requires a bifurcated trial and permits presentation at the penalty
phase of evidence concerning the circumstances of the crime, the
defendant's background and history, and other factors in
aggravation and mitigation of punishment.
E.g., Delgado v.
Connecticut, 408 U.S. 940 (1972),
summarily rev'g 161
Conn.536, 290 A.2d 338 (1971) (
see Conn.Gen.Stat. § 53-10
(1968));
Moore v. Illinois, 408 U.
S. 786 (1972) (
see Ill.Rev.Stat., ch. 38, § 1-7
(1963));
Scoleri v. Pennsylvania, 408 U.S. 934 (1972),
summarily rev'g 432 Pa. 571, 248 A.2d 295 (1968)
(
see Pa.Stat.Ann., Tit. 18, § 4701 (1963)). Although the
creation of a separate sentencing proceeding permits the exclusion
from the guilt phase of information that is relevant only to
sentencing and that might prejudice the determination of guilt,
merely bifurcating the trial obviously does nothing to guide the
discretion of the sentencer.
See Gregg v. Georgia, 428
U.S. at
428 U. S. 192
(opinion of Stewart, POWELL, and STEVENS, JJ.).
Nor is mandatory appellate review a substitute for legislatively
defined criteria to guide the jury in imposing sentence.
Ante at
462 U. S. 890.
Although appellate review may serve to reduce arbitrariness and
caprice "[w]here the sentencing authority is required to specify
the factors it relied upon in reaching its decision,"
Gregg v.
Georgia, supra, at
428 U. S. 195
(opinion of Stewart, POWELL, and STEVENS, JJ.), appellate review
cannot serve this function where statutory aggravating
circumstances play only a threshold role and an appellate court
therefore has no means of ascertaining the factors underlying the
jury's ultimate sentencing decision.
[
Footnote 3/6]
The instructions given in this case are set forth in the Court's
opinion last Term certifying a question to the Georgia Supreme
Court.
See Zant v. Stephens, 456 U.
S. 410,
456 U. S.
411-412, n. 1 (1982). The instructions given in
Gregg are quoted in JUSTICE WHITE's opinion concurring in
the judgment in that case.
See 428 U.S. at
428 U. S.
217-218.
[
Footnote 3/7]
Although JUSTICE POWELL stated in his dissent that he would
leave it to the Georgia Supreme Court to decide "whether it has
authority to find that the instruction was harmless error beyond a
reasonable doubt," 456 U.S. at 429, the per curiam opinion rejected
this approach and asked the Georgia Supreme Court only to clarify
the state law premises underlying its decision to sustain
respondent's death sentence. The Georgia Supreme Court was not
asked to conduct, and it did not conduct, a review of the evidence
to determine whether the instruction was harmless error beyond a
reasonable doubt.
[
Footnote 3/8]
Even if the hypothetical instruction were permissible, it would
not follow that there was no constitutional defect in the
instructions given in this case. There is nothing particularly
vague about the phrase "prior criminal record"; it would be
reasonably clear to any juror of ordinary intelligence that a
defendant's prior criminal record consists of his past convictions.
By contrast, it is common ground in this case that the statutory
aggravating circumstance "substantial history of serious assaultive
criminal convictions" is so vague that no two juries could be
expected to agree as to whether a particular defendant had such a
history.
It is one thing to bring to the jury's attention a readily
identifiable factor such as the defendant's prior criminal record,
and leave it to the jury to decide what weight that factor should
receive. It is quite another thing to ask the jury to determine the
applicability of a statutory factor that no group of individuals of
ordinary intelligence can be expected to apply in any objective
way, and then, if the issue is resolved against the defendant, to
take that factor into account in imposing sentence. Both
instructions invite the exercise of discretion as to the weight to
be given to the statutory factor, but the instruction given here
has the further vice of requiring an arbitrary determination that
can only be made in a haphazard way. It is as if the jurors were
asked to flip a coin and weigh the result in their sentencing
decision. Even if the hypothetical charge cited by the Court were
proper, the charge given in this case would still be impermissible
because it injected an arbitrary determination into the sentencing
process.