Petitioner and other men, whose apparent purpose was to
indiscriminately kill white persons and to start a racial war,
killed a white hitchhiker in Florida. Petitioner was convicted of
first-degree murder by a jury in a Florida state court, and as
required by the Florida death penalty statute a separate sentencing
hearing was held before the same jury, which rendered an advisory
sentence recommending life imprisonment. However, the trial judge,
after receiving a presentence report, sentenced petitioner to
death. As required by the Florida statute, the judge made written
findings of fact, including findings of the statutory aggravating
circumstances that petitioner had knowingly created a great risk of
death to many persons, had committed the murder while engaged in a
kidnaping, had endeavored to disrupt governmental functions and law
enforcement, and had been especially heinous, atrocious, and cruel.
The judge also found that, in addition to the statutory aggravating
circumstances, the petitioner's record constituted an aggravating
circumstance, and ultimately concluded that there were sufficient
aggravating circumstances to justify the death sentence. The judge
did not find any mitigating circumstances, noting particularly that
petitioner had an extensive criminal record, and thus did not
qualify for the statutory mitigating circumstance of having no
significant history of prior criminal activity. On automatic
appeal, the Florida Supreme Court affirmed, approving the trial
judge's findings and concluding that the trial judge properly
rejected the jury's recommendation of life imprisonment. However,
the Florida Supreme Court later vacated its judgment and remanded
to the trial court to give petitioner a full opportunity to rebut
the information in the presentence report. After a resentencing
hearing, the trial court reaffirmed the death sentence on the basis
of findings that were essentially identical to its original
findings, and the Florida Supreme Court again affirmed.
Held: The judgment is affirmed.
411 So. 2d
1310, affirmed.
JUSTICE REHNQUIST, joined by CHIEF JUSTICE BURGER, JUSTICE
WHITE, and JUSTICE O'CONNOR, concluded:
1. Although the State concedes that, under Florida law, the
trial judge improperly found that petitioner's criminal record was
an "aggravating circumstance" because that factor was not among
those established as
Page 463 U. S. 940
"aggravating circumstances" by the Florida statute, there is no
merit to petitioner's challenge concerning the findings on other
aggravating circumstances. Pp.
463 U. S.
946-951.
(a) The findings as to the presence of the statutory aggravating
circumstances were made by the trial court and approved by the
Florida Supreme Court under Florida law, and thus this Court's
review is limited to the question whether the findings were so
unprincipled or arbitrary as to violate the Federal Constitution.
It was not irrational or arbitrary to apply the statutory
aggravating circumstances to the facts of this case. Pp.
463 U. S.
946-947.
(b) Nor must the sentence be vacated on the ground that the
trial judge, in explaining his sentencing decision, discussed the
racial motive for the murder and compared it with his own Army
experiences in World War II, when he saw Nazi concentration camps
and their victims. The Constitution does not require that the
sentencing process be transformed into a rigid and mechanical
parsing of statutory aggravating factors. It is entirely fitting
for the moral, factual, and legal judgment of judges and juries to
play a meaningful role in sentencing. Pp.
463 U. S.
948-951.
2. Although, under Florida law, the trial court improperly
considered the petitioner's criminal record as an "aggravating
circumstance," imposition of the death penalty on petitioner does
not violate the Federal Constitution. Pp.
463 U. S.
951-958.
(a) The Florida statute requires the sentencer to find at least
one valid statutory aggravating circumstance before the death
penalty may even be considered, and permits the trial court to
admit any evidence that may be relevant to the proper sentence.
Florida law requires the sentencer to balance statutory aggravating
circumstances against all mitigating circumstances, and does not
permit nonstatutory aggravating circumstances to enter into the
weighing process. However, when the trial court erroneously
considers improper aggravating factors, the Florida Supreme Court
applies a harmless error analysis if the trial court properly found
that there were no mitigating circumstances. Pp.
463 U. S.
952-956.
(b) Nothing in the Federal Constitution prohibited the trial
court from considering petitioner's criminal record. And under
Florida law, the evidence was properly introduced to prove that the
mitigating circumstance of absence of a criminal record did not
exist. P.
463 U. S.
956.
(c) There is no constitutional defect in a death sentence based
on both statutory and nonstatutory aggravating circumstances, and
mere errors of state law are not the concern of this Court unless
they rise to the level of a denial of constitutional rights. There
is no reason why the Florida Supreme Court, in applying its
harmless error analysis, cannot examine the balance struck by the
trial judge and decide that the elimination of improperly
considered aggravating circumstances could not
Page 463 U. S. 941
possibly affect the balance. What is important is an
individualized determination on the basis of the character of the
individual and the circumstances of the crime. Pp.
463 U. S.
956-958.
JUSTICE STEVENS, joined by JUSTICE POWELL, stressed the
importance of procedural protections that are intended to insure
that the death penalty will be imposed in a consistent, rational
manner. He concluded that Florida's sentencing procedure is
constitutionally adequate; that the Florida rule that statutory
aggravating factors must be exclusive affords greater protection
than the Federal Constitution requires; that, although a death
sentence may not rest solely on a nonstatutory aggravating
circumstance, the Constitution requires no more than one valid
statutory aggravating circumstance, at least a long as none of the
invalid aggravating circumstances is supported by erroneous or
misleading information; that there is no merit in petitioner's
contention that none of the statutory aggravating circumstances
found by the trial court may be sustained under Florida law and the
Federal Constitution; that the trial court did not commit
reversible error of constitutional magnitude by considering
nonstatutory aggravating factors; and that the Florida Supreme
Court ha fulfilled its constitutionally mandated responsibility of
performing meaningful appellate review of death sentence. Pp.
463 U. S.
960-974.
REHNQUIST, J., announced the judgment of the Court and delivered
an opinion, in which BURGER, C.J., and WHITE and O'CONNOR, JJ.,
joined. STEVENS, J., filed an opinion concurring in the judgment,
in which POWELL, J., joined,
post, p.
463 U. S. 958.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
463 U. S. 974.
BLACKMUN, J., filed a dissenting opinion,
post, p.
463 U. S.
991.
JUSTICE REHNQUIST announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE O'CONNOR joined.
The central question in this case is whether Florida may
constitutionally impose the death penalty on petitioner
Page 463 U. S. 942
Elwood Barclay when one of the "aggravating circumstances"
relied upon by the trial judge to support the sentence was not
among those established by the Florida death penalty statute.
The facts, as found by the sentencing judge and quoted by the
Florida Supreme Court, are as follows:
"[T]he four defendants were part of a group that termed itself
the 'BLACK LIBERATION ARMY' (BLA), and whose apparent sole purpose
was to indiscriminately kill white persons and to start a
revolution and a racial war."
"The testimony showed that, on the evening of June 17, 1974,
Dougan, Barclay, Crittendon, Evans and William Hearn set out in a
car armed with a twenty-two caliber pistol and a knife with the
intent to kill . . . any white person that they came upon under
such advantageous circumstances that they could murder him, her or
them."
"That as they drove around the City of Jacksonville, they made
several stops and observed white persons as possible victims, but
decided that the circumstances were not advantageous and that they
might be observed or thwarted. . . . At one stop, Dougan wrote out
a note -- which was to be placed on the body of the victim
ultimately chosen for death."
"Eventually the five men headed for Jacksonville Beach, where
they picked up a hitchhiker, eighteen-year-old Stephen Anthony
Orlando. Against his will and over his protest, they drove him to
an isolated trash dump, ordered him out of the car, threw him down,
and Barclay repeatedly stabbed him with a knife. Dougan then put
his foot on Orlando's head and shot him twice -- once in the cheek
and once in the ear -- killing him instantly."
"The evidence showed that none of the defendants knew or had
ever seen Orlando before they murdered
Page 463 U. S. 943
him. The note, which Dougan had previously written, was stuck to
Orlando's body by the knife of the murderers. The note read:"
"Warning to the oppressive state. No longer will your atrocities
and brutalizing of black people be unpunished. The black man is no
longer asleep. The revolution has begun and the oppressed will be
victorious. The revolution will end when we are free. The Black
Revolutionary Army. All power to the people. . . ."
* * * *
"Subsequent to the murder, the defendants Barclay and Dougan . .
. made a number of tape recordings concerning the murder. These
recordings were mailed to the [victim's mother] and to radio and
television stations. All of the tapes contained much the same in
content and intent. [The court then reproduced typical excerpts
from transcripts of the tapes, which included the following:]"
* * * *
" The reason Stephen was only shot twice in the head was because
we had a jive pistol. It only shot twice and then it jammed; you
can tell it must have been made in America because it wasn't worth
a shit. He was stabbed in the back, in the chest and the stomach,
ah, it was beautiful. You should have seen it. Ah, I enjoyed every
minute of it. I loved watching the blood gush from his eyes. . .
."
" He died in style, though, begging, begging and pleading for
mercy, just as black people did when you took them and hung them to
the trees, burned their houses down, threw bombs in the same church
that practices the same religion that you forced on these people,
my people."
" We are everywhere; you cannot hide from us. You have told your
people to get off the streets and to stay
Page 463 U. S. 944
home. That will not help, for one night they will come home and
we will be there waiting. It has been said, look for us and you
cannot see us; listen for us and you cannot hear us; feel for us
and you cannot touch us. These are the characteristics of an urban
guerilla."
Barclay v. State, 343 So. 2d
1266, 1267-1269 (1977).
Barclay and Dougan were convicted by a jury of first-degree
murder. [
Footnote 1] As
required by the Florida death penalty statute, Fla.Stat. §
921.141(1) (1977), a separate sentencing hearing was held before
the same jury. The jury rendered advisory sentences under §
921.141(2), recommending that Dougan be sentenced to death and, by
a 7 to 5 vote, that Barclay be sentenced to life imprisonment. The
trial judge, after receiving a presentence report, decided to
sentence both men to death. He made written findings of fact
concerning aggravating and mitigating circumstances as required by
§ 921.141(3). App. 1-53. The trial judge found that several of the
aggravating circumstances set out in the statute were present. He
found that Barclay had knowingly created a great risk of death to
many persons, § 921.141(5)(c), had committed the murder while
engaged in a kidnaping, § 921.141(5)(d), had endeavored to disrupt
governmental functions and law enforcement, § 921.141(5)(g), and
had been especially heinous, atrocious, or cruel. § 921.141(5)(h).
See 343 So. 2d at 1271.
The trial judge did not find any mitigating circumstances. He
noted in particular that Barclay had an extensive criminal record,
and therefore did not qualify for the mitigating circumstance of
having no significant history of prior criminal activity. §
921.141(6)(a). He found that Barclay's record constituted an
aggravating, rather than a mitigating, circumstance. 343 So. 2d at
1270, and n. 2. The trial judge also
Page 463 U. S. 945
noted that the aggravating circumstance of § 921.141(5)(a) ("The
capital felony was committed by a convict under sentence of
imprisonment") was not present, but restated Barclay's criminal
record and again found it to be an aggravating circumstance. App.
33-34. He made a similar finding as to the aggravating circumstance
of § 921.141(5)(b) ("The defendant was previously convicted of
another capital felony or of a felony involving the use or threat
of violence to the person"). Barclay had been convicted of breaking
and entering with intent to commit the felony of grand larceny, but
the trial judge did not know whether it involved the use or threat
of violence. He pointed out that crimes such as this often involve
the use or threat of violence, and stated that "there are more
aggravating than mitigating circumstances."
Id. at
34-35.
The trial judge concluded that "[T]HERE ARE SUFFICIENT AND GREAT
AGGRAVATING CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE SENTENCE OF
DEATH AS TO BOTH DEFENDANTS."
Id. at 48. He therefore
rejected part of the jury's recommendation, and sentenced Barclay
as well as Dougan to death.
On the automatic appeal provided by Fla.Stat. § 921.141 (4)
(1977), the Florida Supreme Court affirmed. It approved the
findings of the trial judge and his decision to reject the jury's
recommendation that Barclay be sentenced to life imprisonment. It
concluded that
"[t]his is a case . . . where the jury did not act reasonably in
the imposition of sentence, and the trial judge properly rejected
one of their recommendations."
343 So. 2d at 1271 (footnotes omitted).
This Court denied a petition for a writ of certiorari. 439 U.S.
892 (1978). However, the Florida Supreme Court later vacated its
judgment
sua sponte in light of our decision in
Gardner v. Florida, 430 U. S. 349
(1977), and remanded to the trial court to give Barclay a full
opportunity to rebut the information in the presentence report that
was prepared for the trial judge. The trial court held a
resentencing hearing, and reaffirmed the death sentence on the
basis of
Page 463 U. S. 946
findings that are essentially identical to its original
findings. App. 82-141. On appeal, the Florida Supreme Court again
affirmed, holding that Barclay had not been denied any rights under
Gardner. 411 So. 2d
1310 (1981). Rehearing was denied by an equally divided court.
Ibid.
I
Barclay has raised numerous objections to the trial judge's
findings. The Florida courts declined to reconsider these arguments
in the resentencing proceedings. The resentencing hearing was
limited to ensuring that Barclay received all the rights to which
he was entitled under
Gardner. The Florida Supreme Court
stated that it had "previously analyzed," 411 So. 2d at 1311,
Barclay's arguments, which were directed "against the findings
previously reviewed here and affirmed," and declined to "abrogate
the
law of the case'" on these questions. Id. at 1310.
Since the Florida Supreme Court held that it had considered
Barclay's claims in his first appeal, and simply refused to
reconsider its previous decision in the second appeal, those claims
are properly before us. Reece v. Georgia, 350 U. S.
85, 350 U. S. 86-87
(1955).
A
Barclay argues that the trial judge improperly found that his
criminal record was an "aggravating circumstance." The State
concedes that this is correct: Florida law plainly provides that a
defendant's prior criminal record is not a proper "aggravating
circumstance."
Mikena v. State, 367 So. 2d
606, 610 (Fla.1978).
B
Barclay also argues that the trial judge improperly found the
"under sentence of imprisonment" and "previously been convicted of
a [violent] felony" aggravating circumstances. The Florida Supreme
Court, however, construed the trial judge's opinion as finding that
these aggravating circumstances "essentially had no relevance
here." 343 So.2d at
Page 463 U. S. 947
1271 (footnote omitted). We see no reason to disturb that
conclusion. The trial judge plainly stated that Barclay "was not
under sentence of imprisonment." App. 120. The trial judge also
stated in the same paragraph that Barclay's criminal record "is an
aggravating circumstance,"
id. at 121, but this is simply
a repetition of the error noted above.
Barclay also challenges the findings on several other
aggravating circumstances. He claims that the trial court
improperly found that he caused a great risk of death to many
people, [
Footnote 2] that the
murder was committed during a kidnaping, that the murder was
committed to disrupt the lawful exercise of a governmental function
or the enforcement of the laws, [
Footnote 3] and that the murder was especially heinous,
atrocious, or cruel. [
Footnote
4] All of these findings were made by the trial court and
approved by the Florida Supreme Court under Florida law. Our review
of these findings is limited to the question whether they are so
unprincipled or arbitrary as to somehow violate the United States
Constitution. We think they were not. It was not irrational or
arbitrary to apply these aggravating circumstances to the facts of
this case. [
Footnote 5]
Page 463 U. S. 948
C
Barclay also contends that his sentence must be vacated because
the trial judge, in explaining his sentencing decision, discussed
the racial motive for the murder and compared it with his own
experiences in the Army in World War II, when he saw Nazi
concentration camps and their victims. [
Footnote 6] Barclay
Page 463 U. S. 949
claims that the trial judge improperly added a nonstatutory
aggravating circumstance of racial hatred, and should not have
considered his own experiences.
We reject this argument. The United States Constitution does not
prohibit a trial judge from taking into account the elements of
racial hatred in this murder. The judge in this case found
Barclay's desire to start a race war relevant to several statutory
aggravating factors. [
Footnote
7] The judge's discussion is neither irrational nor arbitrary.
In particular, the comparison between this case and the Nazi
concentration camps does not offend the United States Constitution.
Such a comparison is not an inappropriate way of weighing the
"especially heinous, atrocious, or cruel" statutory aggravating
circumstance in an attempt to determine whether it warrants
imposition of the death penalty.
Page 463 U. S. 950
Any sentencing decision calls for the exercise of judgment. It
is neither possible nor desirable for a person to whom the State
entrusts an important judgment to decide in a vacuum, as if he had
no experiences. The thrust of our decisions on capital punishment
has been that "
discretion must be suitably directed and limited
so as to minimize the risk of wholly arbitrary and capricious
action.'" Zant v. Stephens, 462 U.
S. 862, 462 U. S. 874
(1983), quoting Gregg v. Georgia, 428 U.
S. 153, 428 U. S. 189
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). This very
day, we said in another capital case:
"In returning a conviction, the jury must satisfy itself that
the necessary elements of the particular crime have been proved
beyond a reasonable doubt. In fixing a penalty, however, there is
no similar 'central issue' from which the jury's attention may be
diverted. Once the jury finds that the defendant falls within the
legislatively defined category of persons eligible for the death
penalty, as did respondent's jury in determining the truth of the
alleged special circumstance, the jury then is free to consider a
myriad of factors to determine whether death is the appropriate
punishment."
California v. Ramos, post, at
463 U. S.
1008.
We have never suggested that the United States Constitution
requires that the sentencing process should be transformed into a
rigid and mechanical parsing of statutory aggravating factors. But
to attempt to separate the sentencer's decision from his
experiences would inevitably do precisely that. It is entirely
fitting for the moral, factual, and legal judgment of judges and
juries to play a meaningful role in sentencing. We expect that
sentencers will exercise their discretion in their own way and to
the best of their ability. As long as that discretion is guided in
a constitutionally adequate way,
see Proffitt v. Florida,
428 U. S. 242
(1976), and as long as the decision is not so wholly arbitrary as
to
Page 463 U. S. 951
offend the Constitution, the Eighth Amendment cannot and should
not demand more.
II
In this case, the state courts have considered an aggravating
factor that is not a proper aggravating circumstance under state
law. [
Footnote 8] Barclay
argues that a system that permits this sort of consideration does
not meet the standards established by this Court under the Eighth
and Fourteenth Amendments for imposition of the death penalty.
[
Footnote 9] As in
Zant,
supra, at
462 U. S. 884,
the question whether Barclay's sentence must be vacated depends on
the function of the finding of aggravating circumstances under
Florida law and on the reason why this aggravating circumstance is
invalid. [
Footnote 10]
Page 463 U. S. 952
A
The Florida statute at issue in this case was upheld in
Proffitt v. Florida, supra. The opinion of Justices
Stewart, POWELL, and STEVENS described the mechanics of the statute
as follows:
"[I]f a defendant is found guilty of a capital offense, a
separate evidentiary hearing is held before the trial judge and
jury to determine his sentence. Evidence may be presented on any
matter the judge deems relevant to sentencing, and must include
matters relating to certain legislatively specified aggravating and
mitigating circumstances. Both the prosecution and the defense may
present argument. . . . "
"At the conclusion of the hearing, the jury is directed to
consider"
"[w]hether sufficient mitigating circumstances exist . . . which
outweigh the aggravating circumstances found to exist; and . . .
[b]ased on these considerations, whether the defendant should be
sentenced to life [imprisonment] or death."
"§§ 921.141(2)(b) and (c) (Supp.1976-1977). The jury's verdict
is determined by majority vote. It is only advisory; the actual
sentence is determined by the trial judge. The Florida Supreme
Court has stated, however, that,"
"[i]n order to sustain a sentence of death following a jury
recommendation of
Page 463 U. S. 953
life, the facts suggesting a sentence of death should be so
clear and convincing that virtually no reasonable person could
differ."
"
Tedder v. State, 322 So. 2d
908, 910 (1975). . . ."
"The trial judge is also directed to weigh the statutory
aggravating and mitigating circumstances when he determines the
sentence to be imposed on a defendant. The statute requires that,
if the trial court imposes a sentence of death,"
"it shall set forth in writing its findings upon which the
sentence of death is based as to the facts: (a) [t]hat sufficient
[statutory] aggravating circumstances exist . . . and (b)
[t]hat there are insufficient [statutory] [ [
Footnote 11]]
mitigating
circumstances . . . to outweigh the aggravating
circumstance."
"§ 921.141(3) (Supp.1976-1977)."
"The statute provides for automatic review by the Supreme Court
of Florida of all cases in which a death sentence has been imposed.
§ 921.141(4) (Supp.19761977). The law differs from that of Georgia
in that it does not require the court to conduct any specific form
of review. Since, however, the trial judge must justify the
imposition of a death sentence with written findings, meaningful
appellate review of each such sentence is made possible, and the
Supreme Court of Florida, like
Page 463 U. S. 954
its Georgia counterpart, considers its function to be to"
"[guarantee] that the [aggravating and mitigating] reasons
present in one case will reach a similar result to that reached
under similar circumstances in another case. . . . If a defendant
is sentenced to die, this Court can review that case in light of
the other decisions and determine whether or not the punishment is
too great."
"
State v. Dixon, 283 So. 2d 1,
10 (1973)."
428 U.S. at
428 U. S.
248-251 (footnotes omitted) (emphasis supplied).
Thus the Florida statute, like the Georgia statute at issue in
Zant v. Stephens, 462 U. S. 862
(1983), requires the sentencer to find at least one valid statutory
aggravating circumstance before the death penalty may even be
considered, [
Footnote 12]
and permits the trial court to admit any evidence that may be
relevant to the proper sentence. Unlike the Georgia statute,
however, Florida law requires the sentencer to balance statutory
aggravating circumstances against all mitigating circumstances and
does not permit nonstatutory aggravating circumstances to enter
into this weighing process.
E.g., Mikenas v.
State, 367 So. 2d
606 (Fla.1978). The statute does not establish any special
standard for this weighing process.
Although the Florida statute did not change significantly
between
Proffitt and the decision below, [
Footnote 13] the Florida Supreme Court has
developed a body of case law in this area. One question that has
arisen is whether defendants must be
Page 463 U. S. 955
resentenced when trial courts erroneously consider improper
aggravating factors. If the trial court found that some mitigating
circumstances exist, the case will generally be remanded for
resentencing.
Elledge v. State, 346 So. 2d
998, 1002-1003 (Fla.1977).
See, e.g., Moody v.
State, 418 So. 2d
989, 995 (Fla.1982);
Riley v. State, 366 So. 2d
19, 22 (Fla.1978). If the trial court properly found that there
are no mitigating circumstances, the Florida Supreme Court applies
a harmless error analysis.
Elledge, supra, at 1002-1003.
See, e.g., White v. State, 403 So. 2d
331 (Fla.1981);
Sireci v. State, 399 So. 2d
964, 971 (Fla.1981). In such a case, "a reversal of the death
sentence would not necessarily be required,"
Ferguson v.
State, 417 So. 2d
639, 646 (Fla.1982), because the error might be harmless.
The Florida Supreme Court has not always found that
consideration of improper aggravating factors is harmless, even
when no mitigating circumstances exist. In
Lewis v.
State, 398 So. 2d 432
(Fla.1981), for example, the defendant shot the victim once in the
head through his bedroom window, killing him instantly. The jury
recommended life imprisonment, but the trial judge sentenced Lewis
to death, finding four aggravating circumstances and no mitigating
circumstances. The Florida Supreme Court found that the evidence
did not support three of the aggravating circumstances. It did find
that the "under sentence of imprisonment" aggravating circumstance
was properly applied because Lewis was on parole from a prison
sentence when he committed the crime. On these facts, and with only
this one relatively weak aggravating circumstance left standing,
the Florida Supreme Court did not find harmless error, but rather
remanded for resentencing.
The Florida Supreme Court has placed another check on the
harmless error analysis permitted by
Elledge. When the
jury has recommended life imprisonment, the trial judge may not
impose a death sentence unless "the facts suggesting a sentence of
death [are] so clear and convincing that virtually
Page 463 U. S. 956
no reasonable person could differ."
Tedder v.
State, 322 So. 2d
908, 910 (1975). In
Williams v. State, 386 So. 2d
538,
543 (1980),
and
Dobbert v. State, 375 So. 2d
1069, 1071 (1979), the Florida Supreme Court reversed the trial
judges' findings of several aggravating circumstances. In each
case, at least one valid aggravating circumstance remained, and
there were no mitigating circumstances. In each case, however, the
Florida Supreme Court concluded that, in the absence of the
improperly found aggravating circumstances, the
Tedder
test could not be met. Therefore it reduced the sentences to life
imprisonment.
B
The trial judge's consideration of Barclay's criminal record as
an aggravating circumstance was improper as a matter of state law:
that record did not fall within the definition of any statutory
aggravating circumstance, and Florida law prohibits consideration
of nonstatutory aggravating circumstances. In this case, as in
Zant v. Stephens, 462 U.S. at
462 U. S.
887-888, nothing in the United States Constitution
prohibited the trial court from considering Barclay's criminal
record. The trial judge did not consider any constitutionally
protected behavior to be an aggravating circumstance.
See
id. at
462 U. S. 884.
And, again as in
Zant, nothing in the Eighth Amendment or
in Florida law prohibits the admission of the evidence of Barclay's
criminal record. On the contrary, this evidence was properly
introduced to prove that the mitigating circumstance of absence of
a criminal record did not exist. This statutory aggravating
circumstance "plausibly described aspects of the defendant's
background that were properly before the [trial judge] and whose
accuracy was unchallenged."
Id. at
462 U. S.
887.
C
The crux of the issue, then, is whether the trial judge's
consideration of this improper aggravating circumstance so infects
the balancing process created by the Florida statute that it is
constitutionally impermissible for the Florida Supreme Court to let
the sentence stand. It is clear that the
Page 463 U. S. 957
Court in
Proffitt did not accept this notion. Indeed,
the joint opinion announcing the judgment listed the four
aggravating circumstances that had been found against Proffitt, and
one of them -- "the petitioner has the propensity to commit murder"
-- was not and is not a statutory aggravating circumstance in
Florida. 428 U.S. at
428 U. S. 246
(opinion of Stewart, POWELL, and STEVENS, JJ.).
That opinion did state:
"The petitioner notes further that Florida's sentencing system
fails to challenge the discretion of the jury or judge because it
allows for consideration of nonstatutory aggravating factors. In
the only case to approve such a practice,
Sawyer v.
State, 313 So. 2d 680
(1975), the Florida court recast the trial court's six nonstatutory
aggravating factors into four aggravating circumstances -- two of
them statutory. As noted earlier, it is unclear that the Florida
court would ever approve a death sentence based entirely on
nonstatutory aggravating circumstances.
See n 8,
supra."
Id. at
428 U. S.
256-257, n. 14. While this statement may properly be
read to question the propriety of a sentence based entirely on
nonstatutory aggravating factors, it is clear that the opinion saw
no constitutional defect in a sentence based on both statutory and
nonstatutory aggravating circumstances.
See also California v.
Ramos, post at
463 U. S.
1007-1009, quoting
Zant, supra, at
462 U. S. 878.
Barclay's brief is interlarded with rhetorical references to
"[l]awless findings of statutory aggravating circumstances," Brief
for Petitioner 33, "protective pronouncements which . . . seem to
be turned on and off from case to case without notice or
explanation,"
id. at 93, and others in a similar vein.
These varied assertions seem to suggest that the Florida Supreme
Court failed to properly apply its own cases in upholding
petitioner's death sentence. The obvious answer to this question,
as indicated in the previous discussion, is that mere errors of
state law are not the concern of this Court,
Gryger v.
Burke, 334 U. S. 728,
334 U. S. 731
(1948), unless they rise
Page 463 U. S. 958
for some other reason to the level of a denial of rights
protected by the United States Constitution.
In any event, we do not accept Barclay's premise. Cases such as
Lewis, supra, Williams, supra, and
Dobbert,
supra, indicate that the Florida Supreme Court does not apply
its harmless error analysis in an automatic or mechanical fashion,
but rather upholds death sentences on the basis of this analysis
only when it actually finds that the error is harmless. There is no
reason why the Florida Supreme Court cannot examine the balance
struck by the trial judge and decide that the elimination of
improperly considered aggravating circumstances could not possibly
affect the balance.
See n 9,
supra. "What is important . . . is an
individualized determination on the basis of the character
of the individual and the circumstances of the crime."
Zant,
supra, at
462 U. S. 879
(emphasis in original).
In this case, as in
Zant, supra, at
462 U. S. 890,
our decision is buttressed by the Florida Supreme Court's practice
of reviewing each death sentence to compare it with other Florida
capital cases and to determine whether "the punishment is too
great."
State v. Dixon, 283 So. 2d 1,
10 (1973).
See, e.g., Blair v. State, 406 So. 2d
1103,
1109
(Fla.1981). It is further buttressed by the rule prohibiting the
trial judge from overriding a jury recommendation of life
imprisonment unless "virtually no reasonable person could differ."
Tedder v. State, supra, at 910.
The judgment of the Supreme Court of Florida is
Affirmed.
[
Footnote 1]
Evans and Crittendon, who did not actually kill Orlando, were
convicted of second-degree murder and sentenced to 199 years in
prison. Hearn pleaded guilty to second-degree murder and testified
for the prosecution.
[
Footnote 2]
The Florida Supreme Court stated:
"The trial judge noted five aborted attempts to select a victim
from the streets of Jacksonville before Stephen Orlando was chosen,
plus the taped threat made to white Jacksonville citizens that a
race war had begun and none would be safe."
343 So. 2d at 1271, n. 4.
[
Footnote 3]
The Florida Supreme Court stated:
"The basis for this finding was the judge's observation that the
notion of a race war essentially threatened the foundations of
American society."
Id. at 1271, n.5.
[
Footnote 4]
The Florida Supreme Court noted that the tape recordings
petitioner and Dougan made
"explained how Stephen Orlando had begged for his life while
being beaten and stabbed before Dougan 'executed' him with two
pistol shots in the head."
Id. at 1271, n. 6.
[
Footnote 5]
The differences between this case and
Godfrey v.
Georgia, 446 U. S. 420
(1980), are readily apparent. Godfrey killed his wife and his
mother-in-law with a single shotgun blast each. Each died
instantly. There was no torture or aggravated battery. The state
court nonetheless found that the murder was
"outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to
the victim."
Ga.Code § 27-2534.1(b)(7) (1978). It found no other aggravating
circumstances. We concluded that, on the facts of the case, such a
finding could only have resulted from a "standardless and
unchannelled" decision based on "the uncontrolled discretion of a
basically uninstructed jury." 446 U.S. at
446 U. S.
429.
[
Footnote 6]
The concluding sections of the trial judge's opinion read as
follows:
"
CONCLUSION OF THE COURT"
"THERE ARE SUFFICIENT AND GREAT AGGRAVATING CIRCUMSTANCES WHICH
EXIST TO JUSTIFY THE SENTENCE OF DEATH AS TO THE DEFENDANT ELWOOD
CLARK BARCLAY."
"
AUTHORITY FOR SENTENCE"
"That, under Florida Law, the Judge sentences a defendant,
convicted of Murder in the First Degree, either to death or life
imprisonment. This is an awesome burden to be placed upon the Judge
-- but in the landmark Florida case of
State v.
Dixon, 283 So. 2d 1,
the Florida Supreme Court said that, when such discretion can 'be
shown to be reasonable and controlled, rather than capricious and
discriminatory,' then it meets the test of
Furman v.
Georgia, 408 U. S. 238."
"
COMMENTS OF JUDGE"
"My twenty-eight years of legal experience have been almost
exclusively in the field of Criminal Law. I have been a defense
attorney in criminal cases, an Advisor to the Public Defender's
Office, a prosecutor for eight and one-half years and a Criminal
Court and Circuit Court Judge -- Felony Division -- for almost ten
years. During these twenty-eight years, I have defended,
prosecuted, and held trial in almost every type of serious
crime."
"Because of this extensive experience, I believe I have come to
know and understand when, or when not, a crime is heinous,
atrocious and cruel, and deserving of the maximum possible
sentence."
"My experience with the sordid, tragic and violent side of life
has not been confined to the Courtroom. I, like so many American
Combat Infantry Soldiers, walked the battlefields of Europe and saw
the thousands of dead American and German soldiers, and I witnessed
the concentration camps where innocent civilians and children were
murdered in a war of racial and religious extermination."
"To attempt to initiate such a race war in this country is too
horrible to contemplate for both our black and white citizens. Such
an attempt must be dealt with by just and swift legal process, and,
when justified by a Jury verdict of guilty -- then to terminate and
remove permanently from society those who would choose to initiate
this diabolical course."
"HAD THE DEFENDANT BEEN EXPOSED TO THE CARNAGE OF THE
BATTLEFIELDS AND THE HORRORS OF THE CONCENTRATION CAMPS INSTEAD OF
MOVIES, TELEVISION PROGRAMS AND REVOLUTIONARY TRACTS GLORIFYING
VIOLENCE AND RACIAL STRIFE -- THEN PERHAPS HIS THOUGHTS AND ACTIONS
WOULD HAVE TAKEN A LESS VIOLENT COURSE."
"Having set forth my personal experiences above, it is
understandable that I am not easily shocked or moved by tragedy --
but this present murder and call for racial war is especially
shocking, and meets every definition of heinous, atrocious and
cruel. The perpetrator thereby forfeits further right to life --
for certainly his life is no more sacred than that of the innocent
eighteen-year-old victim, Stephen Anthony Orlando."
App. 135-139.
[
Footnote 7]
The trial judge discussed this point in the course of finding
the "great risk of death to many persons," "disrupt or hinder the
lawful exercise of any governmental function or the enforcement of
the laws," and "especially heinous, atrocious, or cruel" statutory
aggravating circumstances.
[
Footnote 8]
Barclay does not, and could not reasonably, contend that the
United States Constitution forbids Florida to make the defendant's
criminal record an aggravating circumstance. Thus, this case is
distinguishable from
Zant v. Stephens, 462 U.
S. 862 (1983), where one of the three aggravating
circumstances found in Georgia state court was found to be invalid
under the Federal Constitution. Of course, a "
mere error of
state law' is not a denial of due process." Engle v.
Isaac, 456 U. S. 107,
456 U. S. 121,
n. 21 (1982), quoting Gryger v. Burke, 334 U.
S. 728, 334 U. S. 731
(1948). Thus we need not apply the type of federal harmless error
analysis that was necessary in Zant, supra, at
463 U. S.
884-889.
[
Footnote 9]
Barclay does not contend that the Florida Supreme Court erred in
applying the "law of the case" doctrine to this case. His claim
seems to be, rather, that the errors in this case were so egregious
and the flaws in the Florida statute are so fundamental that his
sentence cannot constitutionally be permitted to stand. The Florida
Supreme Court did not address Barclay's arguments in precisely the
terms he now uses. But, so far as we can tell from the record
before us, Barclay did not make his arguments in the same terms on
his first appeal. We know from the Florida Supreme Court's opinion
in the second appeal that it regarded these questions as having
been decided in its first opinion.
See supra at
463 U. S. 946.
It appears, contrary to JUSTICE MARSHALL's assertion,
post
at
463 U. S. 989,
that any fault, if fault there be, for failure to elaborate more
fully on the relationship of this case to other Florida cases may
well lie at the door of petitioner, and not the Supreme Court of
Florida.
[
Footnote 10]
We have, in some similar circumstances, certified a question to
the State Supreme Court in order to ascertain as precisely as
possible the state law basis for a sentence.
See Zant v.
Stephens, 456 U. S. 410,
456 U. S.
416-417 (1982). But that procedure would be
inappropriate here. Unlike
Zant, which was a habeas case
that originated in the federal court system, this case has already
been twice reviewed by the Supreme Court of Florida. On
petitioner's second appeal the Supreme Court of Florida declined to
address the questions he presents to this Court. Under these
circumstances, certification to the Supreme Court of Florida would
be little more than a pointed suggestion that it retreat from its
"law of the case" position. While we may reverse or modify a state
court judgment which we find erroneously disposes of a federal
question, we will not certify a question in these
circumstances.
[
Footnote 11]
In fact, even before this Court decided
Lockett v.
Ohio, 438 U. S. 586
(1978) (evidence at sentencing phase cannot be limited to statutory
mitigating circumstances), the Florida Supreme Court had construed
this statute to permit consideration of
any mitigating
circumstances.
See Songer v. State, 365 So. 2d
696, 700 (Fla.1978) (citing cases). The opinion of Stewart,
POWELL, and STEVENS, JJ. explicitly recognized that § 921.141(5)
does not include language limiting mitigating circumstances to
those listed in the statute, but § 921.141(6) provides that
"aggravating factors shall be limited to" the statutory aggravating
circumstances. 428 U.S. at
428 U. S. 250, n. 8. It is not clear from the opinion
itself why the opinion inserted the word "statutory" in brackets
when quoting § 921.141(b)(3).
[
Footnote 12]
The language of the statute, which provides that the sentencer
must determine whether "sufficient aggravating circumstances
exist," § 921.141(3)(a), indicates that any single statutory
aggravating circumstance may not be adequate to meet this standard
if, in the circumstances of a particular case, it is not
sufficiently weighty to justify the death penalty. We have not
found a Florida case in which a defendant claimed that a single
aggravating circumstance was not "sufficient" within the meaning of
§ 921.141(3)(a).
[
Footnote 13]
The statute was amended in 1979, but the parties agree that the
amended statute was not applied to Barclay.
JUSTICE STEVENS, with whom JUSTICE POWELL joins, concurring in
the judgment.
Death as a punishment is unique in its severity and
irrevocability. Since
Furman v. Georgia, 408 U.
S. 238 (1972), this Court's decisions have made clear
that States may impose this ultimate sentence only if they follow
procedures that are designed to assure reliability in
sentencing
Page 463 U. S. 959
determinations.
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 189,
426 U. S.
196-206 (1976);
Proffitt v. Florida,
428 U. S. 242,
428 U. S.
247-253 (1976);
Woodson v. North Carolina,
428 U. S. 280
(1976);
Gardner v. Florida, 430 U.
S. 349 (1977);
Roberts v. Louisiana,
431 U. S. 633
(1977);
Lockett v. Ohio, 438 U. S. 586
(1978);
Bell v. Ohio, 438 U. S. 637
(1978);
Green v. Georgia, 442 U. S.
95 (1979);
Godfrey v. Georgia, 446 U.
S. 420 (1980);
Eddings v. Oklahoma,
455 U. S. 104
(1982). We have
"attempted to provide standards for a constitutional death
penalty that would serve both goals of measured, consistent
application and fairness to the accused."
Eddings, supra, at
455 U. S. 111.
Again this Term we have reaffirmed our adherence to these
principles.
Zant v. Stephens, 462 U.
S. 862,
462 U. S.
874-880 (1983). Our decisions, taken as a whole, have
given substantial content to the guarantees embodied in the Eighth
and Fourteenth Amendments.
Particular features of state sentencing schemes may be
sufficiently inadequate, unreliable, or unfair that they violate
the United States Constitution. Particular death penalty
determinations may demonstrate that a State's sentencing procedure
is constitutionally inadequate in one or more respects.
See,
e.g., Godfrey v. Georgia, supra. But this is not such a case.
After giving careful consideration to this case and others decided
by the Supreme Court of Florida, I am convinced that Florida has
retained the procedural safeguards that supported our decision to
uphold the scheme in
Proffitt v. Florida, supra, and that
the death sentence imposed upon Elwood Barclay is consistent with
federal constitutional requirements. My conclusions rest on my
understanding of certain aspects of Florida's capital sentencing
procedures that are not adequately explained in the plurality
opinion.
Although I agree with the plurality's conclusion, and with much
of what is said in its opinion, I think it important to write
separately. The plurality acknowledges, of course, the
constitutional guarantees that have been emphasized in
Page 463 U. S. 960
our cases since
Gregg. But in some of its language, the
plurality speaks with unnecessary, and somewhat inappropriate,
breadth. The Court has never thought it sufficient in a capital
case merely to ask whether the state court has been "so
unprincipled or arbitrary as to somehow violate the United States
Constitution."
Ante at
463 U. S. 947.
Nor does a majority of the Court today adopt that standard. A
constant theme of our cases -- from
Gregg and
Proffitt through
Godfrey, Eddings, and most
recently
Zant -- has been emphasis on procedural
protections that are intended to ensure that the death penalty will
be imposed in a consistent, rational manner. As stated in
Zant, we have stressed the necessity of "genuinely
narrow[ing] the class of persons eligible for the death penalty,"
and of assuring consistently applied appellate review. 462 U.S. at
462 U. S. 877,
890. Accordingly, my primary purpose is to reemphasize these
limiting factors in light of the decisions of the Supreme Court of
Florida.
I
Florida has adopted a "trifurcated" procedure for identifying
the persons convicted of a capital felony who shall be sentenced to
death.
See Tedder v. State, 322 So. 2d
908, 910 (1975). Procedurally it consists of a determination of
guilt or innocence by the jury, an advisory sentence by the jury,
and an actual sentence imposed by the trial judge. Although the
court has the authority to reject a jury's recommendation of either
life imprisonment or death, the Florida Supreme Court has
repeatedly stated that it will scrutinize with special care any
death sentence that is imposed after a jury has recommended a
lesser penalty. [
Footnote 2/1]
Page 463 U. S. 961
Analytically, the trial judge must make three separate
determinations in order to impose the death sentence: (1) that at
least one statutory aggravating circumstance has been proved beyond
a reasonable doubt; (2) that the existing statutory aggravating
circumstances are not outweighed by statutory mitigating
circumstances; [
Footnote 2/2] and
(3) that death is the appropriate penalty for the individual
defendant. [
Footnote 2/3]
Page 463 U. S. 962
It is instructive to compare Florida's three-part sentencing
scheme with Georgia's two-stage procedure, which we have reviewed
and upheld this Term.
Zant v. Stephens, 462 U.
S. 862 (1983). Under each of these schemes, the
defendant may not be sentenced to death unless the sentencing
authority -- the jury in Georgia, the judge in Florida -- makes a
threshold determination guided by specific statutory instructions.
Georgia's threshold test is simple: a finding of one valid
statutory aggravating circumstance is sufficient to make the
defendant eligible for the death penalty. In Florida, that is only
the first of two required steps before the threshold is crossed.
[
Footnote 2/4] The court must also
determine
Page 463 U. S. 963
whether any of the statutorily enumerated mitigating
circumstances exist, [
Footnote 2/5]
and if so, whether they outweigh the statutory aggravating
circumstances. If they do, life imprisonment, rather than a death
sentence, is required. Shortly after the enactment of the current
statute, the Florida Supreme Court explained:
"'[T]he procedure to be followed by the trial judges and juries
is not a mere counting process of X number of aggravating
circumstances and Y number of mitigating circumstances, but rather
a reasoned judgment as to what factual situations require the
imposition of death and which can be satisfied by life imprisonment
in light of the totality of the circumstances present. . . .'"
Elledge v. State, 346 So. 2d
998, 1003 (1977), quoting
State v.
Dixon, 283 So. 2d 1,
10 (Fla.1973). As we noted in
Proffitt: "This
determination requires the trial judge to focus on the
circumstances of the crime and the character of the individual
defendant." 428 U.S. at
428 U. S.
251.
In both Florida and Georgia, even if the statutory threshold has
been crossed and the defendant is in the narrow class of persons
who are subject to the death penalty, the sentencing authority is
not required to impose the death penalty. In Georgia, the jury is
expressly given broad discretion to choose between death and life
imprisonment, taking into account all relevant information --
aggravating and mitigating -- about the character and background of
the accused and the circumstances of the crime.
See Zant v.
Stephens, supra. In Florida, since more information has
already been taken
Page 463 U. S. 964
into account in crossing the threshold, the third-stage
determination is more circumscribed -- whether, even though the
first two criteria have been met, it is nevertheless not
appropriate to impose the death penalty. Cases reaching this
conclusion tend to fall into either or both of two general
categories: [
Footnote 2/6] (1)
those in which statutory aggravating circumstances exist, and
arguably outweigh statutory mitigating circumstances, but they are
insufficiently weighty to support the ultimate sentence; [
Footnote 2/7] and (2) those in which, even
though statutory mitigating circumstances do not outweigh statutory
aggravating circumstances, the addition of nonstatutory mitigating
circumstances tips the scales in favor of life imprisonment.
[
Footnote 2/8]
Page 463 U. S. 965
Apparently believing that the Federal Constitution so required,
the Florida Supreme Court has adopted a rule that the "aggravating
circumstances specified in the statute are exclusive, and no others
may be used for that purpose."
Purdy v. State, 343 So.2d.
4, 6 (1977);
Miller v. State, 373 So. 2d
882, 885 (1979);
see Cooper v. State, 336 So. 2d
1133, 1139 (1976);
Provence v. State, 337 So.2d. 783,
786 (1976). [
Footnote 2/9] Not only
has it held that nonstatutory aggravating circumstances do not
satisfy the first threshold criterion -- whether statutory
aggravating circumstances exist. [
Footnote 2/10] It has also held
Page 463 U. S. 966
that evidence supporting nonstatutory aggravating factors simply
may not be introduced into evidence at any stage in the sentencing
proceeding.
See Elledge v. State, 346 So. 2d at 1002.
[
Footnote 2/11] Under Florida
law, the introduction of such evidence is error, although under
some circumstances, the Florida Supreme Court treats it as harmless
error. [
Footnote 2/12]
The Florida rule that statutory aggravating factors must be
exclusive affords greater protection than the Federal Constitution
requires. Although a death sentence may not rest
Page 463 U. S. 967
solely on a nonstatutory aggravating factor,
see Zant v.
Stephens, 462 U.S. at
462 U. S. 876-878, the Constitution does not prohibit
consideration at the sentencing phase of information not directly
related to either statutory aggravating or statutory mitigating
factors, as long as that information is relevant to the character
of the defendant or the circumstances of the crime.
Zant,
supra, at
462 U. S.
878-879;
Gregg v. Georgia, 428 U.S. at
428 U. S. 164,
428 U. S.
196-197,
428 U. S. 206;
Proffitt v. Florida, 428 U.S. at
428 U. S. 242,
248,
428 U. S.
256-257, n. 14. As we recently wrote in
Zant,
"[w]hat 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."
462 U.S. at
462 U. S.
879.
II
In this case, the Florida Supreme Court held that the trial
judge had properly determined that at least four statutory
aggravating circumstances were present.
Barclay v. State,
343 So. 2d at 1266, 1270-1271 (1977). Petitioner alleges that none
of those four aggravating circumstances withstands scrutiny under
Florida law and under our prior cases, including
Godfrey v.
Georgia, 446 U. S. 420
(1980). But it is not necessary to agree with the Florida Supreme
Court's appraisal of all four findings. Under Florida law, if there
are no statutory mitigating circumstances, [
Footnote 2/13] one valid statutory
Page 463 U. S. 968
aggravating circumstance will generally suffice to uphold a
death sentence on appeal even if other aggravating circumstances
are not valid. [
Footnote 2/14]
The Federal Constitution requires no more, at least as long as none
of the invalid aggravating circumstances is supported by erroneous
or misleading information.
See Zant v. Stephens. supra, at
462 U. S.
887-889.
I do not accept petitioner's contention that none of the
statutory aggravating circumstances found by the trial court may be
sustained under Florida law and the Federal Constitution. Tr. of
Oral Arg. 15. The trial court found that the murder was "especially
heinous, atrocious, or cruel" because the victim "was knocked to
the ground and repeatedly stabbed by Barclay as he writhed in pain
begging for mercy." App. 46, 133;
see id. at 9-14
(statement of facts in sentencing order); 343 So. 2d at 1271, n. 6.
[
Footnote 2/15] The court also
found that the crime took place in the commission of a kidnaping,
because
"the defendants picked up the hitch-hiking victim with intent to
murder him. They refused to take him to the place requested, and by
force and/or threats kept him in their car until they found an
appropriate place for the murder."
App. 126;
see id. at 39. It is not our role to
reexamine the trial court's findings of fact, which have been
affirmed by the Florida Supreme Court. Assuming those facts to be
true, there is no federal constitutional infirmity in these two
findings of statutory aggravating circumstances.
Petitioner challenges the trial court's findings that in
committing the murder, he "KNOWINGLY CREATED A GREAT RISK OF DEATH
TO MANY PERSONS," and that the murder was committed to "HINDER THE
LAWFUL
Page 463 U. S. 969
EXERCISE OF ANY GOVERNMENTAL FUNCTION OR THE ENFORCEMENT OF THE
LAWS."
Id. at 122-125, 128-131. [
Footnote 2/16] He does not, however, dispute the facts
recited by the trial court in support of these findings -- that he
and his colleagues had stalked several potential white victims
before picking Stephen Orlando, and that they had sent tapes to a
radio station urging mass racial violence.
See Brief for
Petitioner 5-6, 9-10. This evidence was properly before the
advisory jury and the judge, because it was admissible at the guilt
phase of the proceeding. Thus, whether or not these particular
aggravating circumstances have been narrowly defined by the Florida
Supreme Court, this case -- like
Zant v. Stephens --
involves challenged findings of
"statutory aggravating circumstance[s] . . . whose terms
plausibly described aspects of the defendant's background that were
properly before the jury and whose accuracy was unchallenged."
462 U.S. at
462 U. S.
887.
I am also unpersuaded by petitioner's contention that the trial
court committed reversible error of constitutional magnitude by
considering nonstatutory aggravating factors. In its discussion of
the statutory aggravating circumstance that the defendant was
"under sentence of imprisonment" when he committed the murder, the
court noted that petitioner had not been in prison at the time of
the offense, but that he had an extensive prior criminal record
which was "an aggravating circumstance." The court also noted that
petitioner's previous conviction for breaking and entering with
intent to commit larceny was "more of an aggravating than a
negative circumstance," even though the record did not show
whether
Page 463 U. S. 970
that offense had involved violence, as required by the terms of
one of the statutory aggravating circumstances. App. 120-122. But
even though, under state law, these factors did not support
findings of statutory aggravating circumstances, the information
appears to have been properly before the advisory jury and the
judge. The Florida Supreme Court has recognized that information
about the defendant's prior criminal record may be presented during
the sentencing phase to negate one of the statutory mitigating
factors.
See Booker v. State, 397 So. 2d
910, 918 (1981). In any event, nothing in the Federal
Constitution bars the introduction of a defendant's prior criminal
record, which is highly relevant to his individual background and
character.
See Zant, 462 U.S. at
462 U. S.
887-888;
Proffitt, 428 U.S. at
428 U. S. 252,
n. 9. [
Footnote 2/17]
Similarly, the judge's candid exposition of his deeply felt
concern about racial crimes had no bearing on any statutory
aggravating circumstance, but, in and of itself, it does not
undermine the legitimacy of the ultimate sentence. [
Footnote 2/18] The sentencing process
assumes that the trier of fact will exercise judgment in light of
his or her background, experiences, and values. Just as sentencing
juries "maintain a link between
Page 463 U. S. 971
contemporary community values and the penal system,"
Gregg
v. Georgia, 428 U.S. at
428 U. S. 190,
sentencing judges
"'with experience in the facts of criminality posses[s] the
requisite knowledge to balance the facts of the case against the
standard criminal activity. . . .'"
Proffitt, supra, at
428 U. S. 252,
n. 10, quoting
State v. Dixon, 283 So. 2d at 8. Of course,
if the criteria imposed by law are not satisfied in a particular
case, a trial judge's reactions based on his personal experiences
cannot justify the death penalty. But that is not the case
here.
Petitioner emphasizes, however, that the jury recommended life
imprisonment, and that the court rejected that recommendation. As
we held in
Proffitt, a State may constitutionally give the
court the authority to accept or reject the jury's conclusion. 428
U.S. at
428 U. S. 252.
The court's decision must itself be consistent with constitutional
standards, but those standards were not violated in this case. As
petitioner's own statement of facts makes clear, the jury was
erroneously informed by defense counsel in closing argument that
petitioner "had never been convicted of a crime, and had no
criminal charges pending against him." [
Footnote 2/19] This statement may have led the jury to
believe that there was a statutory mitigating circumstance -- no
substantial history of prior criminal activity. But the presentence
report revealed that petitioner had previously served six months
for the felony of uttering a forgery, had been on probation for the
felony of breaking and entering with intent to commit grand
larceny, and had been arrested on several misdemeanor charges and
convicted of at least one. [
Footnote
2/20] The judge could properly consider that information in
deciding whether to accept or reject the jury's recommendation.
[
Footnote 2/21] In addition, even
if the jury
Page 463 U. S. 972
found that there were nonstatutory mitigating factors, it is
clear that the trial court knew of each of the factors petitioner
recites and did not find them persuasive. [
Footnote 2/22] If we find that proper procedures have
been followed, in the end it is not our function to decide whether
we agree with the 7-to-5 majority of the advisory jury or with the
trial judge. The Florida Supreme Court has held that, under state
law, it was permissible on these facts for the court to reject the
jury's recommendation of life imprisonment. 343 So. 2d at 1271.
[
Footnote 2/23]
Finally, petitioner contends that the Florida Supreme Court has
abdicated its constitutionally mandated responsibility to perform
meaningful appellate review. This contention cannot stand or fall
on a single case, particularly since the rather unusual
circumstances in this case help to explain the limited analysis
provided by the Florida Supreme Court. On direct appeal from the
initial imposition of the death sentence
Page 463 U. S. 973
in 1975, it appears that petitioner did not challenge the
validity of any of the statutory aggravating circumstances. Pet.
for Cert. 2. The sentence was affirmed. Most of the Florida case
law on which petitioner now relies was developed after the initial
decision in his case.
See generally Brief for Petitioner
29-83. Barclay did not receive the benefit of this case law because
of the limited nature of the Florida Supreme Court's remand in
light of this Court's decision in
Gardner v. Florida,
430 U. S. 349
(1977). When that court vacated the death sentence and ordered the
trial court to hold a hearing to permit petitioner to rebut
undisclosed information in the presentence report, it applied a
uniform procedure which expressly limited the scope of the trial
court's proceedings and the scope of appellate review to "matters
related to compliance with this order."
362 So. 2d
657,
658 (1978).
[
Footnote 2/24] The court's
subsequent opinion accordingly dealt only with the presentence
report, and treated the previous affirmance of the death sentence
as "law of the case" with regard to the aggravating
circumstances.
More generally, the question is whether, in its regular
practice, the Florida Supreme Court has become a rubber stamp for
lower court death penalty determinations. It has not. On 212
occasions since 1972, the Florida Supreme Court has reviewed death
sentences; it has affirmed only 120 of them. The remainder have
been set aside, with instructions either to hold a new sentencing
proceeding or to impose a life sentence. In making these judgments,
the court has the benefit of specific written findings by the trial
court, setting
Page 463 U. S. 974
forth the facts underlying each aggravating and mitigating
circumstance.
See State v. Dixon, 283 So. 2d at 8.
Although no appellate court's written decisions, including those of
the Florida Supreme Court, are always a model of clarity and
analysis, the actual decisions by that court have confirmed one of
the premises supporting our decision in
Proffitt --
"The Florida capital sentencing procedures thus seek to assure
that the death penalty will not be imposed in an arbitrary or
capricious manner. Moreover, to the extent that any risk to the
contrary exists, it is minimized by Florida's appellate review
system, under which the evidence of the aggravating and mitigating
circumstances is reviewed and reweighed by the Supreme Court of
Florida 'to determine independently whether the imposition of the
ultimate penalty is warranted.'
Songer v.
State, 322 So. 2d
481, 484 (1975).
See also Sullivan v.
State, 303 So. 2d
632, 637 (1974)."
428 U.S. at
428 U. S. 253.
The cursory analysis in the two opinions upholding petitioner's
death sentence -- which admittedly I do not applaud -- does not
require us to set aside the sentence when we have determined that
the sentence itself does not suffer from any constitutional
flaw.
I therefore concur in the judgment.
[
Footnote 2/1]
Gilven v. State, 418 So. 2d
996, 999 (1982);
Lewis v. State, 398 So. 2d
432, 438 (1981);
Williams v. State, 386 So. 2d
538, 542 (1980);
McCaskill v. State, 344 So. 2d
1276,
1280 (1977);
Burch v. State, 343 So. 2d
831, 834 (1977);
Tedder v. State, 322 So. 2d
908, 910 (1975) ("In order to sustain a sentence of death
following a jury recommendation of life, the facts suggesting a
sentence of death should be so clear and convincing that virtually
no reasonable person could differ").
[
Footnote 2/2]
The text sets forth the statutory procedure that existed at the
time of petitioner's trial in April, 1975. Subsequently, the
Florida Legislature amended the law to prescribe, at stage (2), a
determination whether the statutory aggravating circumstances are
outweighed by any mitigating circumstances, statutory or
nonstatutory. 1979 Fla. Laws, ch. 79-353.
See Moody v.
State, 418 So. 2d
989, 995 (Fla.1982) (setting aside death sentence because
sentencing order did not make clear whether the trial court had
considered nonstatutory mitigating circumstances). The amended
statute, which became effective in July, 1979, was not applied to
petitioner in his subsequent resentencing proceeding. Brief for
Petitioner 23, n. 7.
As long as evidence of mitigation was not excluded from
consideration at the sentencing proceeding,
see Songer v.
State, 365 So. 2d
696, 700 (Fla.1978) (construing pre-1979 statute), the version
of stage (2) applied in petitioner's case was consistent with our
decisions in
Lockett v. Ohio, 438 U.
S. 586 (1978), and
Eddings v. Oklahoma,
455 U. S. 104
(1982). Neither of these cases establishes the weight which must be
given to any particular mitigating evidence, or the manner in which
it must be considered; they simply condemn any procedure in which
such evidence has no weight at all.
See, e.g., Eddings,
supra, at
455 U. S.
114-115, and n. 10. The Constitution does not require
that nonstatutory mitigating circumstances be considered before the
legal threshold is crossed and the defendant is found to be
eligible for the death sentence. It is constitutionally acceptable
to bring such evidence into the decisionmaking process as part of
the discretionary post-threshold determination. In this case,
petitioner does not contend that any relevant mitigating evidence
was excluded from his initial sentencing hearing, or that the trial
court or jury was precluded as a matter of law from considering any
information or arguments in mitigation.
See Brief for
Petitioner 18-19 (nonstatutory mitigating circumstances).
[
Footnote 2/3]
The language of the statute is consistent with this tripartite
analysis. The jury is instructed to
"deliberate and render an advisory sentence to the court, based
upon the following matters:"
"(a) Whether sufficient aggravating circumstances exist as
enumerated in subsection (5);"
"(b) Whether sufficient mitigating circumstances exist as
enumerated in subsection (6), which outweigh the aggravating
circumstances found to exist; and"
"(c) Based on these considerations, whether the defendant should
be sentenced to life imprisonment or death."
Fla.Stat. § 921.141(2) (1977).
Similarly, the trial court must impose life unless he makes
certain findings, though the statute does not require him to impose
death if he does make these findings:
"(a) That sufficient aggravating circumstances exist as
enumerated in subsection (5), and"
"(b) That there are insufficient mitigating circumstances, as
enumerated in subsection (6), to outweigh the aggravating
circumstances."
Fla.Stat. § 921.141(3) (1977).
With regard to the third stage, Florida case law appears to have
evolved over time. An early case suggested that there was no
discretion after the first two criteria had been satisfied.
Cooper v. State, 336 So. 2d
1133,
1142
(Fla.1976) ("Imposition of the death penalty is never pleasant.
Here it cannot be avoided. The statute demands a decision from this
Court, and we are bound to follow the law. In this case, there were
three aggravating and no mitigating circumstances. There is no
alternative to the death penalty"). In general, however, the
Florida Supreme Court appears to recognize that, though the first
two findings establish a "presumption," that presumption may be
overcome.
See, e.g., Williams v. State, supra, at 543
(Jury's recommendation of life militates against the
presumption).
[
Footnote 2/4]
In both Florida and Georgia, if the appellate court finds that
no valid statutory aggravating circumstances are adequately
supported by the record, the death sentence cannot stand, because
the legally mandated threshold has not been crossed.
See, e.g.,
Arnold v. State, 236 Ga. 534, 539-542,
224 S.E.2d
386, 390-392 (1976);
Kamp v. State, 371 So. 2d
1007, 1009-1010 (Fla.1979). This is the case, of course, if
only nonstatutory aggravating circumstances have been found.
[
Footnote 2/5]
If the trial judge applies the wrong standard in determining the
presence or absence of mitigating circumstances, the Florida
Supreme Court will vacate the death sentence.
Ferguson v.
State, 417 So. 2d
631, 638 (Fla.1982).
[
Footnote 2/6]
These two categories appear at the appellate level in Florida
Supreme Court decisions vacating death sentences. It is fair to
assume that Florida trial courts, governed by the principles set
forth by the State's highest court, apply the same criteria on some
occasions to justify imposition of life imprisonment. Such cases
would not appear among the reported decisions, because the State
may not appeal a life sentence.
State v.
Dixon, 283 So. 2d 1,
8 (1973).
[
Footnote 2/7]
See Lewis v. State, 398 So. 2d at 438-439 (only valid
statutory aggravating circumstance was that the defendant was on
parole from a prison sentence at the time of the murder; no
statutory mitigating circumstances);
Williams v. State,
386 So. 2d at 543 (at most one valid statutory aggravating
circumstance, hindering the enforcement of the laws; no statutory
or nonstatutory mitigating circumstances);
Provence v.
State, 337 So.2d. 783, 786-787 (Fla.1976) (only one statutory
aggravating factor, murder in the commission of a robbery; no
reference to mitigating circumstances). The existence of this
category of cases helps to fulfill one of the constitutionally
required functions of a death penalty scheme -- "reasonably
justify[ing] the imposition of a more severe sentence on the
defendant compared to others found guilty of murder,"
Zant v.
Stephens, 462 U. S. 862,
462 U. S. 877
(1983).
[
Footnote 2/8]
As discussed in
463
U.S. 939fn2/2|>n. 2,
supra, under the pre-1979
statute, consideration of nonstatutory mitigating circumstances at
the third stage sufficed to satisfy the constitutional requirement
set forth in
Lockett and
Eddings. This factor, as
well as the weakness of the valid aggravating circumstance,
apparently underlies the Florida Supreme Court's decision in
Lewis v. State, 398 So. 2d 432
(1981). Lewis' trial took place before the 1979 amendment to the
statute. The jury recommended life; the trial court, finding no
statutory mitigating circumstances, nevertheless imposed the death
sentence. The Florida Supreme Court reversed and remanded, stating
that
"the jury is not limited, in its evaluation of the question of
sentencing, to consideration of the statutory mitigating
circumstances. It is allowed to draw on any considerations
reasonably relevant to the question of mitigation of
punishment."
Id. at 439.
In addition, in some cases decided under the pre-1979 statute,
see 463
U.S. 939fn2/2|>n. 2,
supra, the Florida Supreme
Court did not expressly conduct the stage (2) balancing literally
required by the statute, but held that the "mitigating
circumstances" -- including nonstatutory factors -- outweighed the
aggravating circumstances.
See Halliwell v.
State, 323 So. 2d
557, 561 (1975) (defendant,
inter alia, was a highly
decorated Green Beret who had served in Vietnam);
Buckrem v.
State, 355 So. 2d
111, 113 (Fla.1978) (defendant was "gainfully employed").
[
Footnote 2/9]
This rule appears to have been adopted after Barclay's 1975
trial, and after our 1976 decision in
Proffitt. In that
case, the trial court relied on three statutory aggravating
circumstances and one nonstatutory aggravating factor -- that
petitioner "has the propensity to commit murder." The Florida
Supreme Court, without comment, approved all of these findings, and
we upheld the death sentence.
Proffitt v.
State, 315 So. 2d
461, 466-467 (1975),
aff'd, 428 U. S. 428 U.S.
242,
428 U. S.
246-247 (1976).
See also Sawyer v.
State, 313 So. 2d
680, 681-682 (Fla.1975) (twice referred to in our
Proffitt opinion, 428 U.S. at
428 U. S. 250,
n. 8,
428 U. S.
256-257, n. 14). In
Proffitt, we assumed that
the trial court was authorized to receive evidence on any matter
that it deemed relevant to sentencing.
Id. at
428 U. S.
248.
[
Footnote 2/10]
Purdy v. State, 343 So. 2d 4,
6 (1977) ("Under the provisions of Section 921.141, Florida
Statutes, aggravating circumstances enumerated in the statute must
be found to exist before a death sentence may be imposed. The
specified statutory circumstances are exclusive; no others may be
used for that purpose").
[
Footnote 2/11]
The court remanded to the trial court for a new sentencing trial
"at which the factor of the Gaffney murder shall not be
considered." 346 So. 2d at 1003.
[
Footnote 2/12]
In
Elledge, the trial court imposed the death penalty
in reliance on a nonstatutory circumstance and several statutory
aggravating circumstances. After holding that consideration of the
nonstatutory factor was error, the Florida Supreme Court enunciated
the touchstone for determining whether it was reversible error: the
presence or absence of mitigating circumstances. As long as
mitigating circumstances had been found, it was impossible to know
whether the result of the statutorily required weighing process
would have been different in the absence of the impermissible
nonstatutory aggravating factor.
See also Riley v.
State, 366 So. 2d
19, 22 (Fla.1979);
Mikens v. State, 367 So. 2d
606, 610 (Fla.1978);
Menendez v. State, 368 So. 2d
1278, 1281 (Fla.1979);
Blair v. State, 406 So. 2d
1103,
1109
(Fla.1981).
On the other hand, as the
Elledge court also noted, if
there were no statutory mitigating circumstances, and if the court
had found at least one statutory aggravating circumstance along
with a nonstatutory aggravating factor,
"there is no danger that nonstatutory circumstances have served
to overcome the mitigating circumstances in the weighing process
which is dictated by our statute."
346 So. 2d at 1003. By definition, one or more statutory
aggravating circumstances will always outweigh the complete absence
of statutory mitigating circumstances. Furthermore, in another
case,
Brown v. State, 381 So. 2d 690
(1980), the Florida Supreme Court held that, because the trial
court had stated that the one mitigating circumstance, appellant's
age, had "only
some minor significance,'" the death sentence
could be sustained even though the court relied on two improper
aggravating circumstances as well as two well-founded aggravating
circumstances. Id. at 696.
"This is so because unlike
Elledge, here 'we can know'
that the result of the weighing process would not have been
different had the impermissible factors not been present."
Ibid.
[
Footnote 2/13]
Petitioner argues that the jury must have found nonstatutory
mitigating circumstances, Brief for Petitioner 90, n. 29, because
when it recommended life imprisonment, it stated that "sufficient
mitigating circumstances do exist which outweigh any aggravating
circumstances."
Id. at 88, quoting Sentencing Phase Tr.
180. But at the time of Barclay's trial, nonstatutory mitigating
circumstances did not play any role under Florida law in
determining whether the legal threshold had been crossed. As we
have explained above, this procedure was not constitutionally
infirm.
See 463
U.S. 939fn2/2|>n. 2,
supra. Nor does the possible
existence of nonstatutory mitigating circumstances require that the
death sentence automatically be set aside if one or more statutory
aggravating circumstances are invalid under state law, or if
nonstatutory aggravating factors have improperly been considered.
As long as the Federal Constitution did not bar introduction of the
evidence underlying those aggravating factors, it does not require
that the death sentence be set aside.
See Zant v.
Stephens, 462 U.S. at
462 U. S. 888-889.
[
Footnote 2/14]
See 463
U.S. 939fn2/12|>n. 12,
supra; but see 463
U.S. 939fn2/7|>n. 7,
supra, (citing cases).
[
Footnote 2/15]
In
Proffitt, we rejected a facial attack on this
aggravating circumstance,
see 428 U.S. at
428 U. S.
255-256. As applied to the facts found by the trial
court in this case,
see ante at
463 U. S.
942-944, the application of this factor raises no
constitutional problems.
See State v. Dixon, 283 So. 2d at
9;
cf. Godfrey v. Georgia, 446 U.
S. 420 (1980).
[
Footnote 2/16]
Petitioner bases his challenges to these two aggravating
circumstances in large part on
Godfrey v. Georgia, supra.
See Brief for Petitioner 45, 47, 57-58. We need not decide
whether the principles of
Godfrey have been violated by
these two findings, because other statutory aggravating
circumstances are valid. In contrast, in
Godfrey, once the
"broad and vague" aggravating circumstance was struck down, no
valid statutory aggravating circumstances remained.
See
Godfrey, supra, at
446 U. S. 426,
446 U. S.
432-433, n. 15;
Zant v. Stephens, supra, at
462 U. S.
878.
[
Footnote 2/17]
In
Proffitt, we expressly noted that the trial
court
"may order preparation of a presentence investigation report to
assist him in determining the appropriate sentence. . . . These
reports frequently contain much information relevant to
sentencing."
428 U.S. at
428 U. S. 252,
n. 9. Petitioner's trial took place before this Court's decision in
Gardner v. Florida, 430 U. S. 349
(1977), which held that due process requires that such materials be
provided to defense counsel to permit explanation and rebuttal of
potentially misleading or inaccurate information. The Florida
Supreme Court
sua sponte vacated the original sentence and
remanded for a
Gardner hearing regarding the accuracy of
the undisclosed portions of the presentence investigation report.
On remand, the trial court found that petitioner's responses did
not affect the original sentence, the Florida Supreme Court
affirmed, and the issue is not before us on certiorari.
[
Footnote 2/18]
This is not because it assisted the trial court in "weighing the
especially heinous, atrocious, or cruel' statutory aggravating
circumstance," ante at 463 U. S. 949,
but because it pertained more generally to the trial judge's
exercise of his sentencing discretion -- the third stage of the
sentencing process.
[
Footnote 2/19]
Brief for Petitioner 18.
[
Footnote 2/20]
App. 17-18, 25, 33, 34-35, 107-108, 121-122.
[
Footnote 2/21]
The Florida statute gives the trial court an independent duty to
determine whether mitigating circumstances exist, and the Florida
Supreme Court has approved the court's reliance on information not
available to the jury.
White v. State, 403 So. 2d
331, 339-340 (1981);
Swan v. State, 322 So. 2d
485, 488-489 (1975).
[
Footnote 2/22]
See Brief for Petitioner 90-92, n. 29. Barclay was 23
years old, gainfully employed and the father of several children.
App. 25, 30-31, 115, 119. He did not inflict the mortal wounds.
Id. at 23, 112. Dougan, not Barclay, originated the idea,
and was the "leading force" in implementing it.
Id. at 24,
113. Three other codefendants, Hearn, Crittendon, and Evans,
received prison sentences.
Id. at 22-24, 113. Recognizing
these facts, the trial court also found them to be negated or
outweighed by other factors. For example, even though Dougan
rendered the "coup de grace," the trial court found that
"[t]he evidence shows that Barclay was the first to demonstrate
homicidal intent by throwing the victim to the ground and
repeatedly stabbing him with a knife."
Id. at 23;
see id. at 112. And even though
Dougan was the ringleader, the court found that both petitioner and
Dougan were "the primary culprits" and "both were the major
participants,"
id. at 24-25;
see id. at 113-114,
and that Barclay was not under the substantial domination of Dougan
or any other person.
Id. at 26, 114-116.
[
Footnote 2/23]
The Florida Supreme Court has overturned numerous death
sentences imposed by trial courts despite a jury recommendation of
life imprisonment.
See Walsh v. State, 418 So. 2d
1000, 1003-1004 (1982) (listing 23 such cases). It has also
upheld a substantial number of such sentences.
Ibid. The
disposition of each case depends on its particular
circumstances.
[
Footnote 2/24]
The Florida Supreme Court adopted a uniform procedure for
hearings on remand in light of
Gardner v. Florida. It
explained this procedure in
Dougan v.
State, 398 So. 2d
439, 440 (1981):
"Our directive was quite clear that this Court would review a
reimposition of the death penalty 'limited to matters related to
the compliance with this order.' . . . Our vacation of Dougan's
death sentence for
Gardner relief was technically based,
serving the sole purpose of allowing Dougan's counsel to
demonstrate that matters contained in the pre-sentence
investigation report were improper and prejudicial."
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
Based on a sentencing order rife with errors, the trial judge
condemned petitioner Elwood Barclay to death. The Florida Supreme
Court then conducted a perfunctory review and affirmed the
sentence. Today the plurality approves this miscarriage of justice.
In doing so it is utterly faithless to the safeguards established
by the Court's prior decisions. I dissent
Page 463 U. S. 975
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,
428 U. S. 153,
428 U. S. 231
(1976) (MARSHALL, J., dissenting);
Furman v. Georgia,
408 U. S. 238,
408 U. S.
358-369 (1972) (MARSHALL, J., concurring). I would
vacate petitioner's death sentence on this basis alone. However,
even if I accepted the prevailing view that the death penalty may
constitutionally be imposed under certain circumstances, I would
vacate the death sentence imposed in this case.
II
In order to assess the process by which petitioner was sentenced
to death, it is vital to understand the trial judge's explanation
for his sentence of death and the subsequent review of that
sentence by the Florida Supreme Court. In my view, the plurality's
discussion of these matters is woefully incomplete. I therefore
begin by setting out the facts necessary for our review.
A
Under Florida law, if a defendant is found guilty of a capital
offense, a separate sentencing hearing is held. Fla.Stat. §
921.141(1) (1977). After hearing evidence relating to aggravating
and mitigating circumstances, the jury renders an advisory verdict.
§ 921.141(2). The judge then imposes sentence. In this case, the
jury concluded that sufficient aggravating circumstances did not
exist to justify a death sentence, and that mitigating
circumstances existed which outweighed any aggravating
circumstances. [
Footnote 3/1] It
therefore recommended life imprisonment. The trial judge
rejected
Page 463 U. S. 976
the jury's recommendation, however, and sentenced petitioner to
death. The rationale for the judge's decision is set forth in his
sentencing order, which states his findings as to the mitigating
and aggravating circumstances set out in the Florida capital
punishment statute.
See App. 1; § 921.141(3).
The trial judge found that none of the statutory mitigating
circumstances applied to Barclay. [
Footnote 3/2] Instead, the judge concluded that the
absence of one of the mitigating circumstances itself
constituted an aggravating circumstance. Florida law identifies as
a mitigating circumstance the fact that a defendant "has no
significant history of prior criminal activity." § 921.141(6)(a).
The statute does not make the presence of a significant history of
prior criminal activity an aggravating circumstance. § 921.141(5).
See Maggard v. State, 399 So. 2d
973, 977-978 (Fla.1981). Nonetheless, after finding that
petitioner had a criminal record, the trial judge stated that the
prior record constituted an aggravating circumstance. App.19. This
determination was clearly lawless. The Florida Supreme Court has
expressly held that a "substantial history of prior criminal
activity is not an aggravating circumstance under the statute."
Mikenas v. State, 367 So. 2d
606, 610 (1978).
The trial judge then turned to the eight aggravating
circumstances that the Florida Legislature had actually
established. [
Footnote 3/3]
Page 463 U. S. 977
Even though the State had relied on only
one of these
circumstances during the sentencing hearing, [
Footnote 3/4] the trial judge managed to find that six
were relevant.
The first aggravating circumstance applies if a capital felony
has been "committed by a person under sentence of imprisonment." §
921.141(5)(a). The judge stated that Barclay was
not under
imprisonment at the time of the capital offense -- a fact which
should have been dispositive under the plain language of the
statute. Nonetheless, the judge then pointed to Barclay's prior
arrests and the fact that he had previously been on probation for a
felony, and he again stated that petitioner's record constituted an
aggravating circumstance. App. 33. Reliance on the arrests was
certainly improper under Florida law, because any charge which has
"not resulted in a conviction at the time of the [capital] trial"
is "a nonstatutory aggravating factor."
Elledge v.
State, 346 So. 2d
998, 1002 (Fla.1977).
See also Provence v.
State, 337 So. 2d
783, 786 (Fla.1976). Reliance on the fact that petitioner had
formerly been on probation was also error, since the sentence of
imprisonment must exist at the time of the capital felony.
See
Ferguson v. State, 417 So. 2d
631, 636 (Fla.1982);
Peek v. State, 395 So. 2d
492, 499 (Fla.1980).
The second aggravating circumstance found by the trial judge was
that petitioner had been "previously convicted of another capital
felony or of a felony involving the use or threat of violence to
the person." § 921.141(5)(b). The court based this finding on
petitioner's presentence report, which showed an earlier conviction
for breaking and entering with intent to commit grand larceny.
Although there was absolutely no evidence that this prior felony
involved the use or threat of violence, the judge asserted that
"such crime can
Page 463 U. S. 978
and often does involve violence or threat of violence." App. 35.
The judge's reliance on this aggravating circumstance was contrary
to Florida law. This statutory factor applies only where "the
judgment of conviction discloses that it involved violence,"
Mann v. State, 420 So. 2d
578, 581 (Fla.1982), and the Florida Supreme Court has
explicitly held that the crime of breaking and entering with intent
to commit a felony does
not constitute a crime of violence
within the meaning of this provision.
Lewis v.
State, 398 So. 2d
432, 438 (1981);
Ford v. State, 374 So. 2d
496, 501-502, and n. 1 (1979),
cert. denied, 445 U.S.
972 (1980). Moreover, the trial judge's reliance on information
contained in the presentence report to establish this aggravating
circumstance itself constituted an error under state law.
See
Williams v. State, 386 So. 2d
538, 542-543 (Fla.1980).
The trial court next found that petitioner had "knowingly
created a great risk of death to many persons." § 921.141(5) (c).
This statutory circumstance was directed at conduct creating a
serious danger to a large group of people, such as exploding a bomb
in a public place or hijacking an airplane. [
Footnote 3/5] Thus, something in the nature of the
homicidal act itself or in the conduct immediately surrounding the
act must create a great risk to many people.
Bolender v.
State, 422 So. 2d
833,
838
(Fla.1982);
Ferguson v. State, 417 So. 2d
639, 643, 645 (Fla.1982);
Tafero v.
State, 403 So. 2d
355, 362 (Fla.1981);
Kampff v. State, 371 So. 2d
1007, 1009 (Fla.1979);
Elledge v. State, supra, at
1004. For example, the aggravating circumstance does not apply when
"no one else was around" at the time of the capital felony, even
though the murderer then flagged down a passing motorist and
struck
Page 463 U. S. 979
him with a machete, drove at high speeds over a significant
distance, and took a hostage and threatened to kill her.
Mines
v. State, 390 So. 2d
332, 337 (Fla.1980). It is undisputed in this case that the
murder took place at "an isolated trash dump" where no one other
than the perpetrators and the single victim was present.
See
Barclay v. State, 343 So. 2d
1266, 1267 (Fla.1977). The trial judge incorrectly relied on
conduct occurring both
before and
after the
capital felony. App. 38. Invocation of this aggravating
circumstance was therefore clearly unauthorized by state law.
The trial court's remaining findings are also problematic. For
example, the judge found as a fourth aggravating circumstance that
the murder was committed during a kidnaping.
Id. at 39-40;
see § 921.141(5)(d). However, the only witness who
testified about the circumstances prior to the murder noted that
the victim, a hitchhiker, willingly entered the car and rode with
the defendants voluntarily. [
Footnote
3/6] At the close of the trial on the issue of guilt, the trial
judge himself had deemed the evidence insufficient to establish a
kidnaping for purposes of giving a jury instruction as to felony
murder.
The trial judge's explanation of his sentence is all the more
remarkable in light of two salient requirements of the Florida
death penalty scheme. First, each of the statutory aggravating
circumstances "must be proved beyond a reasonable doubt before
being considered by judge or jury."
State v.
Dixon, 283 So. 2d 1,
9 (Fla.1973),
cert. denied, 416 U.S. 943 (1974). Second,
when the jury has recommended a life sentence, the judge may not
impose a death sentence unless "
the facts suggesting a sentence
of death [are] so clear and convincing that no reasonable person
could differ.'" Proffitt v. Florida, 428 U.
S. 242, 428 U. S. 249
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.), quoting
Tedder v. State, 322
Page 463 U. S. 980
So.2d 908, 910 (Fla. 1975). In light of these standards, the
judge's sentencing order in this case was totally inadequate.
B
Nor can the sentencing judge's abysmal performance be deemed
inadvertent or aberrant. To begin with, after the Florida Supreme
Court had vacated the original sentence and remanded the case for
reconsideration in light of
Gardner v. Florida,
430 U. S. 349
(1977), petitioner's counsel brought to the attention of the trial
judge several flagrant legal errors in the original sentencing
order.; [
Footnote 3/7] For example,
counsel noted that defendant's prior criminal record was not a
proper aggravating circumstance, citing a controlling decision of
the Florida Supreme Court,
Mikenas v.
State, 367 So. 2d
606 (1978). [
Footnote 3/8] Even
the plurality acknowledges that the trial judge erred in this
finding.
Ange at
463 U. S. 946.
Nonetheless, the trial judge drafted a new sentencing order which
simply repeated his prior erroneous analysis. App. 107-108.
The trial judge's actions in other capital cases are also
instructive. Judge Olliff has sentenced three other defendants to
death petitioner and his codefendant. [
Footnote 3/9] In each of these cases, as in petitioner's
case, Judge Olliff ignored a jury's advisory sentence of life
imprisonment. [
Footnote 3/10] In
each of the cases, as in petitioner's case, the judge failed to
find a single mitigating circumstance. The judge has repeatedly
found
Page 463 U. S. 981
that the felony was committed by a person under a sentence of
imprisonment, that the defendant had previously been convicted of a
violent felony, and that the defendant created a great risk of
death to many persons, even though virtually all of these findings
had no foundation in Florida law. [
Footnote 3/11] And each time, Judge Olliff has
recounted his experiences during World War II and recited
boilerplate language to the effect that he was not easily shocked,
but that the offense involved shocked him. [
Footnote 3/12]
Page 463 U. S. 982
C
In reviewing the hopelessly flawed sentencing order, the Florida
Supreme Court did not identify a single error in the trial judge's
explanation. Instead, it praised Judge Olliff's performance:
"The trial judge here painstakingly and with reasoned judgment
detailed the factors which caused his departure from the jury's
recommendation.
His thorough analysis is precisely the type we
would expect from mature, deliberative judges in this state.
It suggests why the Legislature put the trial judges of Florida in
the middle of the sentencing process for capital cases."
343 So. 2d at 1271, n. 8 (emphasis added).
Page 463 U. S. 983
The Florida Supreme Court's perfunctory analysis focused on the
death sentence imposed on petitioner's codefendant, Jacob Dougan.
Id. at 1270-1271. The court subsequently indicated that
"virtually the same considerations" applied to Barclay.
Id. at 1271. As a result, it never discussed the trial
judge's specific findings concerning Barclay. With respect to the
aggravating circumstances applicable to Dougan, the Florida Supreme
Court stated that "the trial judge recited that four factors
essentially had no relevance here."
Ibid. (footnote
omitted). However, two of the factors referred to in this sentence
were aggravating circumstances that the trial judge had explicitly
discussed. [
Footnote 3/13] In
short, the Florida Supreme Court mischaracterized the trial judge's
opinion as to these aggravating circumstances. [
Footnote 3/14] The Florida Supreme Court then
listed the four other aggravating circumstances that had been
relied upon, and stated in conclusory fashion that the trial
judge's findings were "well documented in the record before us."
Ibid.
The Florida Supreme Court recognized that the jury had
recommended a life sentence for Barclay. But the court stated that
this recommendation was properly rejected so that there would be no
disparity of treatment between Dougan and Barclay:
"'Equal Justice Under Law' is carved over the doorway to the
United States Supreme Court building
Page 463 U. S. 984
in Washington. It would have a hollow ring in the halls of that
building if the sentences in these cases were not equalized."
Ibid. The court ignored the differences between Barclay
and Dougan which the jury had apparently found decisive. In
addition to obscuring the proper focus on the individual offender,
the court's invocation of principles of equal justice is
particularly inappropriate in this case in light of the treatment
of two of petitioner's codefendants, Evans and Crittendon. Both of
these individuals participated in the murder of Stephen Orlando;
indeed, Evans was the first to stab Orlando. [
Footnote 3/15] Moreover, after Orlando was
murdered, Evans and Crittendon committed a second murder in the
name of the Black Liberation Army
in which petitioner Barclay
played absolutely no part. [
Footnote 3/16] Yet these two received prison sentences,
while Barclay was condemned to death.
III
The procedures by which Elwood Barclay was condemned to die
cannot pass constitutional muster. First, the trial judge's
reliance on aggravating circumstances not permitted under the
Florida death penalty scheme is constitutional error that cannot be
harmless. Second, the Florida Supreme Court's failure to conduct
any meaningful review of the death sentence deprived petitioner of
a safeguard that the Court has deemed indispensable to a
constitutional capital sentencing scheme.
A
Under Florida law the imposition of the death sentence depends
critically on the findings of statutory aggravating circumstances.
First, for a defendant to be sentenced to death, the court must
determine that "
sufficient [statutory] aggravating
circumstances exist." § 921.141(3)(a) (emphasis added). Second, the
court must determine that there
Page 463 U. S. 985
are "insufficient mitigating circumstances . . . to outweigh the
aggravating circumstances." § 921.141(3)(b). The sentencer
therefore not only weighs aggravating against mitigating
circumstances, but, even in the absence of mitigating
circumstances, the sentencer must weigh the statutory circumstances
alone to determine their sufficiency.
Florida law clearly limits aggravating circumstances to those
enumerated in the statute. § 921.141(5). Thus, "the specified
statutory circumstances are exclusive; no others may be used for
that purpose."
Purdy v. State, 343 So. 2d 4,
6 (Fla.1977).
Accord, Odom v. State, 403 So. 2d
936, 942 (Fla.1981);
Spaziano v. State, 393 So. 2d
1119, 1122-1123 (Fla.1981);
Miller v.
State, 373 So. 2d
882, 885 (Fla.1979);
Provence v. State, 337 So. 2d at
786. [
Footnote 3/17]
Because Florida law prohibits reliance on nonstatutory
aggravating circumstances, the trial judge's invocation of such
circumstances in this case assumes special significance. In
Hicks v. Oklahoma, 447 U. S. 343
(1980), this Court held that, when a State has provided for the
imposition of criminal punishment subject to certain procedural
protections, it is not correct to say that the denial of one of
those protections "is merely a matter of state procedural law."
Id. at 346. Eight Justices agreed that the defendant in
such a case "has a substantial and legitimate expectation that he
will be deprived of his liberty only to the extent" provided for by
state law, and that such an interest is constitutionally protected.
Ibid. See also Vitek v. Jones, 445 U.
S. 480,
445 U. S.
488-489 (1980).
The State of Florida has determined that a trial judge may not
rely upon nonstatutory aggravating circumstances in sentencing
Page 463 U. S. 986
a defendant to death. The propriety of a death sentence imposed
on the basis of nonstatutory aggravating circumstances is therefore
not merely a matter of state law. A criminal defendant has a
substantial and legitimate expectation that such circumstances will
not be employed in sentencing him to death. The state-created
protection cannot be arbitrarily abrogated, as it was here, without
violating the Constitution.
Reliance on nonstatutory aggravating factors also runs afoul of
this Court's "insistence that capital punishment be imposed fairly,
and with reasonable consistency, or not at all."
Eddings v.
Oklahoma, 455 U. S. 104,
455 U. S. 112
(1982). Fairness and consistency cannot be achieved without
"
clear and objective standards' that provide `specific and
detailed guidance.'" Godfrey v. Georgia, 446 U.
S. 420, 446 U. S. 428
(1980) (plurality opinion), quoting Proffitt v. Florida,
428 U.S. at 428 U. S. 253
(opinion of Stewart, POWELL, and STEVENS, JJ.), and Woodson v.
North Carolina, 428 U. S. 280,
428 U. S. 303
(1976) (plurality opinion). [Footnote
3/18] Indeed, the Florida death penalty scheme was approved on
the understanding that it required "an informed, focused, guided,
and objective inquiry into the question whether [a defendant]
should be sentenced to death." Proffitt v. Florida, supra,
at 428 U. S. 259
(opinion of Stewart, POWELL, and STEVENS, JJ.).
Because Florida limits consideration of aggravating
circumstances to certain enumerated factors, and because the
weighing of those factors plays a crucial role in the sentencing
process, fairness and consistency cannot be achieved if
nonstatutory aggravating circumstances are randomly introduced into
the balance. If one judge follows the law in sentencing a capital
defendant, but another judge injects into the weighing process any
number of nonstatutory factors in aggravation, or if the same judge
selectively relies on such circumstances, the fate of an individual
defendant will inevitably
Page 463 U. S. 987
depend on whether, on a given day, his sentencer happened to
respect the constraints imposed by Florida law. The decision to
execute a human being surely should not depend on such
pot-luck.
The plurality opinion departs from the Court's past insistence
on consistency and fairness in the capital sentencing process.
Under the plurality's view, the standard for review of a death
sentence would apparently be "limited" to whether its imposition
was "so unprincipled or arbitrary as to somehow violate the United
States Constitution."
Ante at
463 U. S. 947.
[
Footnote 3/19] This standard is
devoid of any meaningful content. It is simply tautological: a
decision to impose the death sentence is not unconstitutional so
long as it "is not so wholly arbitrary as to offend the
Constitution."
Ante at
463 U. S.
950-951. This implies that, in death cases, there are
degrees of acceptable arbitrariness, and that there exists some
undefined point at which a sentence crosses over into the nether
world of "wholly" arbitrary decisionmaking. I see no way to
reconcile this standard with the requirements of the
Constitution.
Nor can I agree that reliance on nonstatutory aggravating
circumstances under the Florida scheme can be deemed harmless
error. Florida law puts special emphasis on the finding of an
aggravating circumstance. [
Footnote
3/20] Moreover, the sentencer always has discretion not to
impose the death sentence in an individual case. Under these
circumstances, we are "not at liberty to assume that items given .
. . emphasis by the sentencing court did not influence the sentence
which the prisoner [received]."
Townsend v. Burke,
334 U. S. 736,
334 U. S. 740
(1948). Protecting against the arbitrary imposition
Page 463 U. S. 988
position of the death penalty
"must not become simply a guessing game played by a reviewing
court in which it tries to discern whether the improper
nonstatutory aggravating factors exerted a decisive influence on
the sentence determination. The guarantee against cruel and unusual
punishment demands more."
Henry v. Wainwright, 661 F.2d 56, 59-60 (CA5 1981).
Where a life is at stake, the risk that a particular defendant has
been selected for the wrong reason is unacceptable and incompatible
with the Eighth and Fourteenth Amendments.
See Lockett v.
Ohio, 438 U. S. 586,
438 U. S. 605
(1978). Given the "extraordinary measures" this Court has
undertaken to guarantee "as much as is humanly possible" that a
death sentence has not been imposed by "mistake,"
Eddings v.
Oklahoma, supra, at
455 U. S. 118
(O'CONNOR, J., concurring), a remand for resentencing is the least
that is required.
B
To avoid the arbitrary and capricious imposition of the death
penalty, this Court has also stressed "the further safeguard of
meaningful appellate review."
Gregg v. Georgia, 428 U.S.
at
428 U. S. 195
(opinion of Stewart, POWELL, and STEVENS, JJ.).
See Proffitt v.
Florida, supra, at
428 U. S. 253
(opinion of Stewart, POWELL, and STEVENS, JJ.);
Godfrey v.
Georgia, supra, at
446 U. S. 429
(plurality opinion);
Zant v. Stephens, 456 U.
S. 410,
456 U. S.
413-414 (1982). In his opinion concurring in the
judgment, JUSTICE STEVENS notes the importance of this safeguard.
Ante at
463 U. S.
973-974. In my view, the failure of the Florida Supreme
Court to conduct any considered appellate review in this case
requires that petitioner's death sentence be vacated.
If appellate review is to be meaningful, it must fulfill its
basic historic function of correcting error in the trial court
proceedings. A review for correctness reinforces the authority and
acceptability of the trial court's decision and controls the
adverse effects of any personal shortcomings in the
Page 463 U. S. 989
initial decisionmaker. [
Footnote
3/21] The Florida Supreme Court's review of Barclay's sentence
utterly failed to fulfill this function. The court glossed over all
of the errors in the sentencing order. Instead, it lauded the trial
judge's performance, stating that Judge Olliff's "thorough analysis
is precisely the type we would expect." 343 So. 2d at 1271, n. 8.
Given such encouragement, it is hardly surprising that, in
subsequent cases, Judge Olliff has persisted in misapplying the
Florida death penalty statute. [
Footnote 3/22]
The trial judge in this case plainly misapplied aggravating
circumstances enumerated in Florida law. For example, he relied
upon a conviction for breaking and entering to establish that
petitioner had previously been convicted of a violent felony, even
though the Florida Supreme Court has expressly held that such a
crime does not satisfy the statutory factor. Similarly, the judge
concluded that petitioner had created a great risk of death to many
persons even though the homicidal act itself created no such risk.
Faced with such findings, the Florida Supreme Court simply failed
to consider whether they were consistent with Florida law.
Conceivably it would have been possible to reconcile the findings
in this case with other decisions which the Florida Supreme Court
has rendered, although I doubt it. But if the process of appellate
review means anything, it requires that the legal principles
applied in one case be harmonized with settled law.
The plurality proceeds on the unfounded assumption that,
although errors may have been made by the trial judge, the Florida
Supreme Court nonetheless concluded that the errors were harmless.
The plurality states:
"[T]he Florida Supreme Court does not apply its harmless error
analysis in an automatic or mechanical fashion, but rather upholds
death sentences on the basis of this
Page 463 U. S. 990
analysis only when it actually finds that the error is harmless.
There is no reason why the Florida Supreme Court cannot examine the
balance struck by the trial judge and decide that the elimination
of improperly considered aggravating circumstances could not
possibly affect the balance."
Ante at
463 U. S.
958.
The plurality's reliance on the harmless error doctrine has no
relation to the Florida Supreme Court's decision in this case. As
one might surmise from the terminology, a "harmless error" inquiry
refers to a process by which an appellate court identifies legal
errors and then determines whether they could have affected the
judgment being reviewed. Here, the Florida Supreme Court did not
identify any legal errors in the trial judge's sentencing order; it
extolled the merits of the sentencing order. It therefore never
reached the question whether the error was harmless. The Florida
Supreme Court's decision in this case can readily be contrasted
with those decisions in which it actually conducted a harmless
error analysis. For example, in
White v.
State, 403 So. 2d 331
(1981), cited
ante at
463 U. S. 955,
the court examined each of the aggravating circumstances upon which
the sentencer had relied, explained the errors that the sentencer
had committed, and then assessed the significance of the errors.
403 So. 2d at 337-339
The plurality's reliance on the harmless error review conducted
by the Florida Supreme Court in other cases is entirely misplaced.
See ante at
463 U. S. 955,
463 U. S. 958.
When a defendant's life is at stake, it hardly suffices to tell him
that, some of the time, the State's highest court does its job.
Every defendant sentenced to death is entitled to meaningful
appellate review, and where it is clear that the Florida Supreme
Court has not provided such review, the death sentence should be
vacated.
IV
This case illustrates the capital sentencing process gone awry.
Relying on factors not mentioned in Florida law and
Page 463 U. S. 991
statutory factors distorted beyond recognition, Judge Olliff
overrode the jury's recommendation of life and sentenced petitioner
to death. The Florida Supreme Court failed to conduct any
meaningful review, and instead showered the trial judge with praise
for his performance.
"Justice of this kind is obviously no less shocking than the
crime itself, and the new 'official' murder, far from offering
redress for the offense committed against society, adds instead a
second defilement to the first."
A. Camus, Reflections on the Guillotine 5-6 (R. Howard,
trans.1960). I therefore dissent.
[
Footnote 3/1]
See Brief for Petitioner 19 (quoting transcript of
penalty trial at 180); Fla.Stat. § 921.141(2) (1977) (jury's
advisory verdict is based upon its determination of whether
sufficient aggravating circumstances exist and whether sufficient
mitigating circumstances exist which outweigh the aggravating
circumstances).
[
Footnote 3/2]
The trial judge did not mention the subject of nonstatutory
mitigating circumstances. During closing argument at the sentencing
trial, petitioner's counsel had contended that such circumstances
were present. For example, counsel noted that petitioner was the
father of five children and was gainfully employed, and he argued
that petitioner was a follower, and not a leader, among the
murderers. He also pointed to the disparity in treatment among the
various participants in the crime, three of whom faced punishment
for only second-degree murder. The jury's finding that sufficient
mitigating circumstances existed which outweighed any aggravating
circumstances indicates that the jury found some mitigating
circumstances.
Cf. Elledge v. State, 346 So. 2d
998, 1003 (Fla.1977).
[
Footnote 3/3]
See Fla.Stat. § 921.141(5) (1977). Since petitioner's
trial, an additional aggravating circumstance has been added to the
list.
See § 921.141(5)(i) (1981).
[
Footnote 3/4]
See Tr. of Oral Arg. 5.
[
Footnote 3/5]
As the Chairman of the Select Committee on the Death Penalty of
the Florida House of Representatives stated during hearings on the
1972 death penalty statute, this aggravating circumstance was
intended to apply to cases in which "[t]he defendant knowingly
created risk of death to many persons. That's your hijacking
sectio[n]." Hearings before the Select Committee on the Death
Penalty 66 (Aug. 4, 1972).
[
Footnote 3/6]
William Hearn, a participant in the murders, testified that the
victim asked the other passengers if they smoked marihuana and
indicated that he had a friend from whom they could buy some. The
victim also engaged in other conversation.
See Tr. of
Trial 1369-1372.
[
Footnote 3/7]
See Tr. of Resentencing Hearing 56-83.
[
Footnote 3/8]
See id. at 61-62.
[
Footnote 3/9]
See Lewis v. State, 398 So. 2d 432
(Fla. 1981);
Dobbert v. State, 375 So. 2d
1069 (Fla. 1979);
Carnes v. State, Nos. 74-2024,
74-2131 (Cir.Ct. 4th Jud. Cir., Duval County, Florida, Nov. 19,
1974), App. to Brief for Petitioner 15a.
[
Footnote 3/10]
There is only one reported decision in which Judge Olliff did
not give a convicted capital felon a death sentence.
Hopkins v.
State, 418 So. 2d 1183 (Fla.App. 1982). In that case, however,
the judge attempted to sentence the defendant to a term of 199
years, and to reserve review of any release of the defendant for 66
years, even though such a sentence was not authorized by law.
Id. at 1183-1184. The Florida Appellate Court vacated the
sentence and remanded for resentencing.
[
Footnote 3/11]
With respect to the statutory provision that the felony had been
committed by a person under a sentence of imprisonment, Judge
Olliff's findings were as follows. In
Dobbert, the judge
concluded that the circumstance applied even though there was no
evidence that Dobbert was under sentence of imprisonment at the
time of the murder.
See 375 So. 2d at 1070. In
Carnes, Judge Olliff concluded that, although the
defendant was not under sentence of imprisonment, the aggravating
circumstance nonetheless applied because Carnes was out on bond on
another charge at the time of the offense. App. to Brief for
Petitioner 32a. In
Lewis, the judge correctly concluded
that the aggravating circumstance applied. 398 So. 2d at 438.
With respect to the statutory circumstance of a prior conviction
involving a violent felony, in
Lewis, Judge Olliff
erroneously relied on convictions for breaking and entering.
Ibid. In
Dobbert, the factor was not mentioned.
In
Carnes, Judge Olliff found the circumstance applicable
even though the defendant had never been convicted of an offense.
App. to Brief for Petitioner 33a-34a.
As for the creation of a great risk of death to many persons,
the Florida Supreme Court concluded that the judge had erred in
finding the circumstance applicable in both
Lewis, supra,
at 438, and
Dobbert, supra, at 1070. In
Carnes,
Judge Olliff found the aggravating circumstance applicable even
though there were only two other people present in the house when
the defendant shot the victim, and both of them were in another
room. App. to Brief for Petitioner 34a-36a.
[
Footnote 3/12]
In
Lewis, Judge Olliff wrote:
"My experience with the sordid, tragic and violent side of life
has not been confined to the Courtroom. During World War II, I was
a United States Army Paratrooper and served in ground combat in
Europe. I have seen death and suffering in almost every conceivable
form."
"I am not easily shocked or moved by tragedy -- but this was an
especially heinous, atrocious and cruel crime -- and is deserving
of no sentence but death."
App. to Brief for Petitioner 78a.
In
Dobbert, Judge Olliff wrote:
"'My experience with the sordid, tragic and violent side of life
has not been confined to the Courtroom. During World War II, I was
a United States Army Paratrooper and served overseas in ground
combat. I have had friends blown to bits and have seen death and
suffering in every conceivable form."
"'I am not easily shocked or [a]ffected by tragedy or cruelty --
but this murder of a helpless, defenseless and innocent [person] is
the most cruel, atrocious and heinous crime I have eve[r]
personally known of -- and it is deserving of no sentence but
death.'"
Dobbert v. Florida, 432 U. S. 282,
432 U. S. 296,
n. 9 (1977).
In
Carnes, Judge Olliff wrote:
"My experience with the sordid, tragic and violent side of life
has not been confined to the Courtroom. During World War II, I was
a United States Army Paratrooper and served overseas in ground
combat. I have seen friends blown to bits and have seen death and
suffering in almost every conceivable form."
"I am not easily shocked or moved by tragedy -- but this was an
especially shocking crime."
App. to Brief for Petitioner 43a.
[
Footnote 3/13]
Thus, in summarizing the trial judge's findings, the Florida
Supreme Court stated that "Dougan was not under sentence of
imprisonment," and "had not been previously convicted of a major
felony." 343 So. 2d at 1271, n. 3. In discussing each of these
aggravating circumstances, however, the trial judge had plainly
found them applicable. App. 34-35. In contrast, when a circumstance
was inapplicable, the trial court was perfectly capable of saying
so. For example, in discussing the murder-for-pecuniary-gain
factor, § 921.141(5)(f), the trial judge stated: "This paragraph
does not seem to apply to the present case." App. 41.
[
Footnote 3/14]
The plurality compounds this distortion by relying on this
sentence in the Florida Supreme Court opinion in an effort to cast
aside two of the aggravating circumstances that were applied to
Barclay.
See ante at
463 U. S.
946-947.
[
Footnote 3/15]
See Tr. of Resentencing Hearing 28 (testimony of
Officer Thomas Reeves, supervising investigator for the murder of
Stephen Orlando).
[
Footnote 3/16]
Id. at 6-8.
[
Footnote 3/17]
The Florida death penalty scheme manifestly differs from that in
Georgia, as recently interpreted by the Georgia Supreme Court.
See Zant v. Stephens, 462 U. S. 862
(1983). To begin with, Georgia permits the sentencer to rely on
nonstatutory aggravating factors so long as at least one valid
aggravating circumstance is identified. In addition, the Georgia
scheme does not require any weighing of the sufficiency of the
statutory aggravating circumstances, nor does it require a weighing
of aggravating against mitigating circumstances.
[
Footnote 3/18]
See also Hopper v. Evans, 456 U.
S. 605,
456 U. S. 606
(1982);
Lockett v. Ohio, 438 U. S. 586,
438 U. S. 601
(1978) (plurality opinion)
[
Footnote 3/19]
Only four Justices agree that our review is limited in this
fashion. JUSTICE STEVENS, with whom JUSTICE POWELL joins, would
insist on more substantial procedural protections.
See
ante at
463 U. S.
959-960.
[
Footnote 3/20]
Because the aggravating factors listed in the Florida statute
are exclusive, and because the sufficiency of these circumstances
must always be weighed, the finding of each statutory aggravating
circumstance has special significance under the Florida law, in
contrast to the Georgia scheme.
See Zant v. Stephens,
supra.
[
Footnote 3/21]
See P. Carrington, D. Meador, & M. Rosenberg,
Justice on Appeal 2 (1976); R. Pound, Appellate Procedure in Civil
Cases 3-4 (1941).
[
Footnote 3/22]
See 463 U. S.
supra.
JUSTICE BLACKMUN, dissenting.
Like JUSTICE STEVENS,
ante at
463 U. S. 974,
I cannot "applaud" the procedures and appellate analysis that have
led to petitioner's death sentence. Like the Court, however, I
cannot "applaud" the undertakings of petitioner and his companions
that led to their victim's death in the Jacksonville area that
night in June, 1974. But when a State chooses to impose capital
punishment, as this Court has held a State presently has the right
to do, it must be imposed by the rule of law. JUSTICE MARSHALL's
opinion convincingly demonstrates the fragility, in Barclay's case,
of the application of Florida's established law. The errors and
missteps -- intentional or otherwise -- come close to making a
mockery of the Florida statute, and are too much for me to condone.
Petitioner Barclay, reprehensible as his conduct may have been,
deserves to have a sentencing hearing and appellate review free of
such misapplication of law, and in line with the pronouncements of
this Court.
The final result reached by the Florida courts, and now by this
Court, in Barclay's case may well be deserved, but I cannot be
convinced of that until the legal process of the case has been
cleansed of error that is so substantial. The end does not justify
the means even in what may be deemed to be a "deserving" capital
punishment situation.
I therefore dissent.