After he was found with a murder victim's vehicle and other
belongings, petitioner Schad was indicted for first-degree murder.
At trial, the prosecutor advanced both premeditated and felony
murder theories, against which Schad claimed that the
circumstantial evidence proved, at most, that he was a thief, not a
murderer. The court refused Schad's request for an instruction on
theft as a lesser included offense, but charged the jury on
second-degree murder. The jury convicted him of first-degree
murder, and he was sentenced to death. The State Supreme Court
affirmed, rejecting Schad's contention that the trial court erred
in not requiring the jury to agree on a single theory of
first-degree murder. The court also rejected Schad's argument that
Beck v. Alabama, 447 U. S. 625,
required an instruction on the lesser included offense of
robbery.
Held: The judgment is affirmed.
163 Ariz. 411,
788 P.2d
1162, (1989) affirmed.
JUSTICE SOUTER delivered the opinion of the Court with respect
to Part III, concluding that
Beck v. Alabama, 447 U.
S. 625 -- which held unconstitutional a state statute
prohibiting lesser included offense instructions in capital cases
-- did not entitle Schad to a jury instruction on robbery. Beck was
based on the concern that a jury convinced that the defendant had
committed some violent crime, but not convinced that he was guilty
of a capital offense, might nonetheless vote for a capital
conviction if the only alternative was to set him free with no
punishment at all.
See id. at
447 U. S. 629,
447 U. S. 630,
447 U. S. 632,
447 U. S. 634,
447 U. S. 637,
447 U. S.
642-643, and n.19. This concern simply is not implicated
here, since the jury was given the "third option" of finding Schad
guilty of a lesser included noncapital offense, second-degree
murder. It would be irrational to assume that the jury chose
capital murder, rather than second-degree murder, as its means of
keeping a robber off the streets, and, thus, the trial court's
choice of instructions sufficed to ensure the verdict's
reliability. Pp.
501 U. S.
645-648.
JUSTICE SOUTER, joined by THE CHIEF JUSTICE, JUSTICE O'CONNOR,
and JUSTICE KENNEDY, concluded in Part II that Arizona's
characterization of first-degree murder as a single crime as to
which a jury need not agree on one of the alternative statutory
theories of premeditated or felony murder is not unconstitutional.
Pp.
501 U. S.
630-645.
Page 501 U. S. 625
(a) The relevant enquiry is not, as Schad argues, whether the
Constitution requires a unanimous jury in state capital cases.
Rather, the real question here is whether it was constitutionally
acceptable to permit the jury to reach one verdict based on any
combination of the alternative findings. Pp.
501 U. S.
630-631.
(b) The long-established rule that a jury need not agree on
which overt act, among several, was the means by which a crime was
committed provides a useful analogy. Nevertheless, the Due Process
Clause does place limits on a State's capacity to define different
states of mind as merely alternative means of committing a single
offense; there is a point at which differences between those means
become so important that they may not reasonably be viewed as
alternatives to a common end, but must be treated as
differentiating between what the Constitution requires to be
treated as separate offenses subject to separate jury findings. Pp.
501 U. S.
631-637.
(c) It is impossible to lay down any single test for determining
when two means are so disparate as to exemplify two inherently
separate offenses. Instead, the concept of due process, with its
demands for fundamental fairness and for the rationality that is an
essential component of that fairness, must serve as the measurement
of the level of definitional and verdict specificity permitted by
the Constitution. Pp.
501 U. S.
637-638.
(d) The relevant enquiry must be undertaken with a threshold
presumption of legislative competence. Decisions about what facts
are material and what are immaterial, or, in terms of
In re
Winship, 397 U. S. 358,
397 U. S. 364,
what "fact[s] [are] necessary to constitute the crime," and
therefore must be proved individually, and what facts are mere
means, represent value choices more appropriately made in the first
instance by a legislature than by a court. There is support for
such restraint in this Court's "burden-shifting" cases, which have
made clear, in a slightly different context, that the States must
be permitted a degree of flexibility in determining what facts are
necessary to constitute a particular offense within the meaning of
Winship. See, e.g., Patterson v. New York,
432 U. S. 197,
432 U. S.
201-202,
432 U. S. 210.
Pp.
501 U. S.
638-639.
(e) In translating the due process demands for fairness and
rationality into concrete judgments about the adequacy of
legislative determinations, courts should look both to history and
widely shared state practice as guides to fundamental values.
See, e.g., id. at
432 U. S. 202. Thus it is significant here that
Arizona's equation of the mental states of premeditated and felony
murder as a species of the blameworthy state of mind required to
prove a single offense of first-degree murder finds substantial
historical and contemporary echoes.
See, e.g., People v.
Sullivan, 173 N.Y. 122, 127, 65 N.E. 989, 989-990;
State
v. Buckman, 237 Neb. 936,
468 N.W.2d 589.
Pp.
501 U. S.
640-643.
Page 501 U. S. 626
(f) Whether or not everyone would agree that the mental state
that precipitates death in the course of robbery is the moral
equivalent of premeditation, it is clear that such equivalence
could reasonably be found.
See Tison v. Arizona,
481 U. S. 137,
481 U. S.
157-158. This is enough to rule out the argument that a
moral disparity bars treating the two mental states as alternative
means to satisfy the mental element of a single offense. Pp.
501 U. S.
643-644.
(g) Although the foregoing considerations may not exhaust the
universe of those potentially relevant, they are sufficiently
persuasive that the jury's options in this case did not fall beyond
the constitutional bounds of fundamental fairness and rationality.
P.
501 U. S.
645.
JUSTICE SCALIA would reach the same result as the plurality with
respect to Schad's verdict-specificity claim, but for a different
reason. It has long been the general rule that, when a single crime
can be committed in various ways, jurors need not agree upon the
mode of commission. As the plurality observes, one can conceive of
novel "umbrella" crimes that could not, consistent with due
process, be submitted to a jury on disparate theories. But
first-degree murder, which has in its basic form existed in our
legal system for centuries, does not fall into that category. Such
a traditional crime, and a traditional mode of submitting it to the
jury, do not need to pass this Court's "fundamental fairness"
analysis; and the plurality provides no persuasive justification
other than history, in any event. Pp.
501 U. S.
648-652.
SOUTER, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Part III, in which
REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined,
and an opinion with respect to Parts I and II, in which REHNQUIST,
C.J., and O'CONNOR and KENNEDY, JJ., joined. SCALIA, J., filed an
opinion concurring in part and concurring in the judgment,
post, p.
501 U. S. 648.
WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN,
and STEVENS, JJ., joined,
post, p.
501 U. S.
652.
Page 501 U. S. 627
JUSTICE SOUTER announced the judgment of the Court and delivered
the opinion of the Court with respect to Part III, and an opinion
with respect to Parts I and II in which THE CHIEF JUSTICE, JUSTICE
O'CONNOR, and JUSTICE KENNEDY join.
This case presents two questions: whether a first-degree murder
conviction under jury instructions that did not require agreement
on whether the defendant was guilty of premeditated murder or
felony murder is unconstitutional, and whether the principle
recognized in
Beck v. Alabama, 447 U.
S. 625 (1980), entitles a defendant to instructions on
all offenses that are lesser than and included within a capital
offense as charged. We answer no to each.
I
On August 9, 1978, a highway worker discovered the badly
decomposed body of 74-year-old Lorimer Grove in the underbrush off
U.S. Highway 89, about nine miles south of Prescott, Arizona. There
was a rope around his neck, and a coroner determined that he had
been strangled to death. The victim had left his home in Bisbee,
Arizona, eight days earlier, driving his new Cadillac and towing a
camper.
Page 501 U. S. 628
On September 3, 1978, petitioner, driving Grove's Cadillac, was
stopped for speeding by the New York State Police. He told the
officers that he was transporting the car for an elderly friend
named Larry Grove. Later that month, petitioner was arrested in
Salt Lake City, Utah, for a parole violation and possession of a
stolen vehicle. A search of the Cadillac, which petitioner was
still driving, revealed personal belongings of Grove's, and
petitioner's wallet contained two of Grove's credit cards, which
petitioner had begun using on August 2, 1978. Other items belonging
to Grove were discovered in a rental car which had been found
abandoned off Highway 89 on August 3, 1978; petitioner had rented
the car the previous December, and never returned it. While in
custody in Salt Lake City, petitioner told a visitor that he would
"
deny being in any area of Arizona or the State of Arizona,
particularly Tempe, Arizona and Prescott, Arizona.'" 163 Ariz. 411,
414, 788 P.2d
1162, 1164 (1989).
A Yavapai County, Arizona, grand jury indicted petitioner on one
count of first-degree murder, and petitioner was extradited to
stand trial. The Arizona statute applicable to petitioner's case
defined first-degree murder as
"murder which is . . . wilful, deliberate or premeditated . . .
or which is committed . . . in the perpetration of, or attempt to
perpetrate . . . robbery."
Ariz.Rev.Stat.Ann. § 13-452 (Supp.1973). [
Footnote 1] Petitioner was convicted and sentenced
to death,
Page 501 U. S. 629
but his conviction was set aside on collateral review. 142 Ariz.
619,
691 P.2d
710 (1984).
At petitioner's retrial, the prosecutor advanced theories of
both premeditated murder and felony murder, against which
petitioner claimed that the circumstantial evidence proved, at
most, that he was a thief, not a murderer. The court instructed the
jury that
"[f]irst degree murder is murder which is the result of
premeditation. . . . Murder which is committed in the attempt to
commit robbery is also first degree murder."
App. 26. The court also instructed that "[a]ll 12 of you must
agree on a verdict. All 12 of you must agree whether the verdict is
guilty or not guilty."
Id. at 27.
The defense requested a jury instruction on theft as a lesser
included offense. The court refused, but did instruct the jurors on
the offense of second-degree murder, and gave them three forms for
reporting a verdict: guilty of first-degree murder; guilty of
second-degree murder; and not guilty. The jury convicted petitioner
of first-degree murder, and, after a further hearing, the judge
sentenced petitioner to death.
The Arizona Supreme Court affirmed. 163 Ariz. 411,
788 P.2d 1162
(1989). The court rejected petitioner's contention that the trial
court erred in not requiring the jury to agree on a single theory
of first-degree murder, explaining:
"'In Arizona, first degree murder is only one crime regardless
whether it occurs as a premeditated murder or a felony murder.
Although a defendant is entitled to a unanimous jury verdict on
whether the criminal act charged has been committed, the defendant
is not entitled to a unanimous verdict on the precise manner in
which the act was committed.'"
Id. at 417; 788 P.2d at 1168 (quoting
State v.
Encinas, 132 Ariz. 493, 496,
647 P.2d 624,
627 (1982)) (citations omitted).
The court also rejected petitioner's argument that
Beck v.
Alabama, 447 U. S. 625
(1980), required an instruction on the lesser included offense of
robbery.
Page 501 U. S. 630
163 Ariz. at 416-417, 788 P.2d at 1167-1168.
We granted certiorari.
498 U. S. 111
(1990).
II
Petitioner's first contention is that his conviction under
instructions that did not require the jury to agree on one of the
alternative theories of premeditated and felony murder is
unconstitutional. [
Footnote 2]
He urges us to decide this case by holding that the Sixth, Eighth,
and Fourteenth Amendments require a unanimous jury in state capital
cases, as distinct from those where lesser penalties are imposed.
See Johnson v. Louisiana, 406 U.
S. 356 (1972);
Apodaca v. Oregon, 406 U.
S. 404 (1972). We decline to do so, however, because the
suggested reasoning would beg the question raised. Even assuming a
requirement of jury unanimity
arguendo, that assumption
would fail to address the issue of what the jury must be unanimous
about. Petitioner's jury was unanimous in deciding that the State
had proved what, under state law, it had to prove: that petitioner
murdered either with premeditation or in the course of committing a
robbery. The question still remains whether it was constitutionally
acceptable to permit the jurors to reach one verdict based on any
combination of the alternative findings. If it was, then the jury
was unanimous in reaching the verdict, and petitioner's proposed
unanimity rule would not help him. If it was not, and the jurors
may not combine findings of premeditated and felony murder, then
petitioner's conviction will fall even without his proposed rule,
because the instructions allowed for the forbidden combination.
In other words, petitioner's real challenge is to Arizona's
characterization of first-degree murder as a single crime as to
Page 501 U. S. 631
which a verdict need not be limited to any one statutory
alternative, as against which he argues that premeditated murder
and felony murder are separate crimes as to which the jury must
return separate verdicts. The issue in this case, then, is one of
the permissible limits in defining criminal conduct, as reflected
in the instructions to jurors applying the definitions, not one of
jury unanimity.
A
A way of framing the issue is suggested by analogy. Our cases
reflect a long-established rule of the criminal law that an
indictment need not specify which overt act, among several named,
was the means by which a crime was committed. In
Andersen v.
United States, 170 U. S. 481
(1898), for example, we sustained a murder conviction against the
challenge that the indictment on which the verdict was returned was
duplicitous in charging that death occurred through both shooting
and drowning. In holding that "the Government was not required to
make the charge in the alternative,"
id. at
170 U. S. 504,
we explained that it was immaterial whether death was caused by one
means or the other.
Cf. Borum v. United States,
284 U. S. 596
(1932) (upholding the murder conviction of three codefendants under
a count that failed to specify which of the three did the actual
killing);
St. Clair v. United States, 154 U.
S. 134,
154 U. S. 145
(1894). This fundamental proposition is embodied in Federal Rule of
Criminal Procedure 7(c)(1), which provides that
"[i]t may be alleged in a single count that the means by which
the defendant committed the offense are unknown or that the
defendant committed it by one or more specified means."
We have never suggested that, in returning general verdicts in
such cases, the jurors should be required to agree upon a single
means of commission, any more than the indictments were required to
specify one alone. In these cases, as in litigation generally,
"different jurors may be persuaded by different pieces of
evidence, even when they agree upon the
Page 501 U. S. 632
bottom line. Plainly there is no general requirement that the
jury reach agreement on the preliminary factual issues which
underlie the verdict."
McKoy v. North Carolina, 494 U.
S. 433,
494 U. S. 449
(1990) (BLACKMUN, J., concurring) (footnotes omitted).
The alternatives in the cases cited went, of course, to
possibilities for proving the requisite
actus reus, while
the present case involves a general verdict predicated on the
possibility of combining findings of what can best be described as
alternative mental states, the one being premeditation, the other
the intent required for murder combined with the commission of an
independently culpable felony.
See State v. Serna, 69
Ariz. 181, 188, 211 P.2d 455, 459 (1949) (in Arizona, the attempt
to commit a robbery is "the legal equivalent of . . . deliberation,
premeditation, and design"). [
Footnote 3] We see no reason, however, why the rule that
the jury need not agree as to mere means of satisfying the
actus reus element of an offense should not apply equally
to alternative means of satisfying the element of
mens
rea.
That is not to say, however, that the Due Process Clause places
no limits on a State's capacity to define different courses of
conduct, or states of mind, as merely alternative means of
committing a single offense, thereby permitting a defendant's
conviction without jury agreement as to which course or state
actually occurred. The axiomatic requirement of due process that a
statute may not forbid conduct in terms so vague that people of
common intelligence would be relegated to differing guesses about
its meaning,
see Lanzetta v. New Jersey, 306 U.
S. 451,
306 U. S. 453
(1939) (citing
Connally v. General Construction Co.,
269 U. S. 385,
269 U. S. 391
(1926)) carries the practical consequence that a defendant charged
under a valid statute will be in a position to understand with some
specificity the legal basis of the charge
Page 501 U. S. 633
against him. Thus it is an assumption of our system of criminal
justice "
so rooted in the traditions and conscience of our
people as to be ranked as fundamental,'" Speiser v.
Randall, 357 U. S. 513,
357 U. S. 523
(1958) (quoting Snyder v. Massachusetts, 291 U. S.
97, 291 U. S. 105
(1934)), that no person may be punished criminally save upon proof
of some specific illegal conduct. Just as the requisite specificity
of the charge may not be compromised by the joining of separate
offenses, see United States v. UCO Oil Co., 546 F.2d 833
(CA9 1976), cert. denied, 430 U.S. 966 (1977), nothing in
our history suggests that the Due Process Clause would permit a
State to convict anyone under a charge of "Crime" so generic that
any combination of jury findings of embezzlement, reckless driving,
murder, burglary, tax evasion, or littering, for example, would
suffice for conviction. [Footnote
4]
To say, however, that there are limits on a State's authority to
decide what facts are indispensable to proof of a given offense is
simply to raise the problem of describing the point at which
differences between means become so important that they may not
reasonably be viewed as alternatives to a common end, but must be
treated as differentiating what the Constitution requires to be
treated as separate offenses.
See generally Note, 91
Harv.L.Rev. 499, 501-502 (1977). Although we have never before
attempted to define what constitutes an immaterial difference as to
mere means and what constitutes a material difference requiring
separate theories of crime to be treated as separate offenses
subject to separate jury findings, there is a body of law in the
federal circuits, deriving primarily from the decision of the Fifth
Circuit
Page 501 U. S. 634
in
United States v. Gipson, 553 F.2d 453 (CA5 1977)
(Wisdom, J.), that addresses this problem.
The defendant in
Gipson was charged with violating 18
U.S.C. § 2313, which prohibited knowingly "receiv[ing],
conceal[ing], stor[ing], barter[ing], sell[ing] or dispos[ing] of"
any stolen vehicle or aircraft moving in interstate commerce, and
was convicted after the trial judge charged the jury that it need
not agree on which of the enumerated acts the defendant had
committed. The Fifth Circuit reversed, reasoning that the
defendant's right to "jury consensus as to [his] course of action"
[
Footnote 5] was violated by
the joinder in a single count of "two distinct conceptual
groupings," receiving, concealing, and storing forming the first
grouping (referred to by the court as "housing"), and bartering,
selling, and disposing ("marketing") constituting the second.
Id. at 456-459. In that court's view, the acts within a
conceptual grouping are sufficiently similar to obviate the need
for jurors to agree about which of them was committed, whereas the
acts in distinct conceptual groupings are so unrelated that the
jury must decide separately as to each grouping. A number of lower
courts have adopted the standard of "distinct conceptual groupings"
as the appropriate test.
E.g., United States v. Peterson,
768 F.2d 64 (CA2) (Friendly, J.),
cert. denied, 474 U.S.
923 (1985);
United States v. Duncan, 850 F.2d 1104, 1113
(CA6 1988),
cert. denied
Page 501 U. S. 635
sub nom. Downing v. United States, 498 U.S. 1025
(1990);
State v. Baldwin, 101 Wis.2d 441, 449-450,
304 N.W.2d
742, 747-749 (1981).
We are not persuaded that the
Gipson approach really
answers the question, however. Although the classification of
alternatives into "distinct conceptual groupings" is a way to
express a judgment about the limits of permissible alternatives,
the notion is too indeterminate to provide concrete guidance to
courts faced with verdict specificity questions.
See, e.g.,
Rice v. State, 311 Md. 116, 133, 532 A.2d 1357, 1365 (1987)
(criticizing
Gipson criteria as "not entirely clear" and
as "provid[ing] little guidance"); Trubitt, Patchwork Verdicts,
Different-Jurors Verdicts, and American Jury Theory: Whether
Verdicts Are Invalidated by Juror Disagreement on Issues, 36
Okla.L.Rev. 473, 548-549 (1983) (same). This is so because
conceptual groupings may be identified at various levels of
generality, and we have no
a priori standard to determine
what level of generality is appropriate. Indeed, as one judge has
noted, even on the facts of
Gipson itself,
"[o]ther conceptual groupings of the six acts are possible. [One
might] put all six acts into one conceptual group, namely
trafficking in stolen vehicles."
Manson v. State, 101 Wis.2d 413, 438,
304 N.W.2d
729, 741 (1981) (Abrahamson, J., concurring);
accord,
Trubitt,
supra, at 548-549 ("[I]t is difficult to see how
a court could determine that
housing' and `marketing' are
ultimate acts in some metaphysical or constitutional sense, and
thus prohibit the legislature from including them in the single
offense of trafficking"). In short, the notion of "distinct
conceptual groupings" is simply too conclusory to serve as a real
test.
The dissent would avoid the indeterminacy of the
Gipson
approach by adopting an inflexible rule of maximum verdict
specificity. In the dissent's view, whenever a statute lists
alternative means of committing a crime, "the jury [must] indicate
on which of the alternatives it has based the defendant's guilt,"
post at
501 U. S. 656,
even where there is no indication
Page 501 U. S. 636
that the statute seeks to create separate crimes. This approach
rests on the erroneous assumption that any statutory alternatives
are
ipso facto independent elements defining independent
crimes under state law, and therefore subject to the axiomatic
principle that the prosecution must prove independently every
element of the crime.
See post at
501 U. S.
656-658 (citing
In re Winship, 397 U.
S. 358 (1970), and
Sandstrom v. Montana,
442 U. S. 510
(1979)). In point of fact, as the statute at issue in
Gipson demonstrates, legislatures frequently enumerate
alternative means of committing a crime without intending to define
separate elements or separate crimes. [
Footnote 6] The question whether statutory alternatives
constitute independent elements of the offense therefore does not,
as the dissent would have it, call for a mere tautology; rather, it
is a substantial question of statutory construction.
See, e.g.,
United States v. UCO Oil Co., 546 F.2d at 835-838.
In cases, like this one, involving state criminal statutes, the
dissent's "statutory alternatives" test runs afoul of the
fundamental principle that we are not free to substitute our own
interpretations of state statutes for those of a State's courts. If
a State's courts have determined that certain statutory
alternatives are mere means of committing a single offense, rather
than independent elements of the crime, we simply are not at
liberty to ignore that determination and conclude that the
alternatives are, in fact, independent elements under state law.
See Mullaney v. Wilbur, 421 U. S. 684,
421 U. S.
690-691 (1975) (declining to reexamine the Maine
Page 501 U. S. 637
Supreme Judicial Court's decision that, under Maine law, all
intentional or criminally reckless killings are aspects of the
single crime of felonious homicide);
Murdock v.
City of Memphis, 20 Wall. 590 (1875). In the
present case, for example, by determining that a general verdict as
to first-degree murder is permissible under Arizona law, the
Arizona Supreme Court has effectively decided that, under state
law, premeditation and the commission of a felony are not
independent elements of the crime, but rather are mere means of
satisfying a single
mens rea element. The issue in this
case therefore is not whether "the State must be held to its
choice,"
post at
501 U. S.
657-658, for the Arizona Supreme Court has
authoritatively determined that the State has chosen not to treat
premeditation and the commission of a felony as independent
elements of the crime, but rather whether Arizona's choice is
unconstitutional.
B
It is tempting, of course, to follow the example of
Gipson to the extent of searching for some single
criterion that will serve to answer the question facing us. We are
convinced, however, of the impracticability of trying to derive any
single test for the level of definitional and verdict specificity
permitted by the Constitution, and we think that, instead of such a
test, our sense of appropriate specificity is a distillate of the
concept of due process with its demands for fundamental fairness,
see, e.g., Dowling v. United States, 493 U.
S. 342,
493 U. S.
352-353 (1990), and for the rationality that is an
essential component of that fairness. In translating these demands
for fairness and rationality into concrete judgments about the
adequacy of legislative determinations, we look both to history and
wide practice as guides to fundamental values, as well as to
narrower analytical methods of testing the moral and practical
equivalence of the different mental states that may satisfy the
mens rea element of a single offense. The enquiry is
undertaken with a threshold presumption of legislative
Page 501 U. S. 638
competence to determine the appropriate relationship between
means and ends in defining the elements of a crime.
1
Judicial restraint necessarily follows from a recognition of the
impossibility of determining, as an
a priori matter,
whether a given combination of facts is consistent with there being
only one offense. Decisions about what facts are material and what
are immaterial, or, in terms of
Winship, 397 U.S. at
397 U. S. 364,
what "fact[s] [are] necessary to constitute the crime," and
therefore must be proved individually, and what facts are mere
means, represent value choices more appropriately made in the first
instance by a legislature than by a court. Respect for this
legislative competence counsels restraint against judicial
second-guessing,
cf. Rostker v. Goldberg, 453 U. S.
57,
453 U. S. 65
(1981) ("lack of competence on the part of the courts" relative to
the legislature so counsels), which is particularly appropriate in
cases, like this one, that call state definitions into
question.
"It goes without saying that preventing and dealing with crime
is much more the business of the States than it is of the Federal
Government,
Irvine v. California, 347 U. S.
128,
347 U. S. 134 (1954)
(plurality opinion), and that we should not lightly construe the
Constitution so as to intrude upon the administration of justice by
the individual States."
Patterson v. New York, 432 U.
S. 197,
432 U. S. 201
(1977).
There is support for such restraint in our "burden-shifting"
cases, which have made clear, in a slightly different context, that
the States must be permitted a degree of flexibility in defining
the "fact[s] necessary to constitute the crime" under
Winship. Each of those cases arose because a State defined
an offense in such a way as to exclude some particular fact from
those to be proved beyond a reasonable doubt, either by placing the
burden on defendants to prove a mitigating fact,
see Patterson,
supra, (extreme emotional disturbance);
Martin v.
Ohio, 480 U. S. 228
(1987) (self-defense);
see also Mullaney,
Page 501 U. S. 639
supra, (heat of passion or sudden provocation), or by
allowing the prosecution to prove an aggravating fact by some
standard less than that of reasonable doubt,
McMillan v.
Pennsylvania, 477 U. S. 79 (1986)
(possession of a firearm). In each case, the defendant argued that
the excluded fact was inherently "a fact necessary to constitute
the offense" that required proof beyond a reasonable doubt under
Winship, even though the fact was not formally an element
of the offense with which he was charged.
See, e.g., 477
U.S. at
477 U. S.
90.
The issue presented here is similar, for under Arizona law
neither premeditation nor the commission of a felony is formally an
independent element of first-degree murder; they are treated as
mere means of satisfying a
mens rea element of high
culpability. The essence of petitioner's argument is that, despite
this unitary definition of the offense, each of these means must be
treated as an independent element as to which the jury must agree,
because premeditated murder and felony murder are inherently
separate offenses. Both here and in the burden-shifting cases, in
other words, a defendant argues that the inherent nature of the
offense charged requires the State to prove as an element of the
offense some fact that is not an element under the legislative
definition.
In the burden-shifting cases, as here, we have faced the
difficulty of deciding, as an abstract matter, what elements an
offense must comprise. Recognizing "[o]ur inability to lay down any
bright-line' test," McMillan, supra, at 477 U. S. 91, we
have "stressed that . . . the state legislature's definition of the
elements of the offense is usually dispositive." Id. at
477 U. S. 85;
see also Patterson, supra, 432 U.S. at 432 U. S.
201-202. We think that similar restraint is appropriate
here, although we recognize that, as in the burden-shifting cases,
"there are obviously constitutional limits beyond which the States
may not go." Patterson, supra, at 432 U. S. 210;
see also McMillan, supra, 477 U.S. at 477 U. S.
86.
Page 501 U. S. 640
2
The use here of due process as a measurement of the sense of
appropriate specificity assumes the importance of history and
widely shared practice as concrete indicators of what fundamental
fairness and rationality require. In turning to these sources, we
again follow the example set in the burden-shifting cases, where we
have often found it useful to refer both to history and to the
current practice of other States in determining whether a State has
exceeded its discretion in defining offenses.
See Patterson,
supra, 432 U.S. at
432 U. S. 202,
432 U. S.
207-209 nn. 10-11;
see also Martin, supra, 480
U.S. at
480 U. S.
235-236;
Mullaney, supra, 421 U.S. at
421 U. S.
692-696. Where a State's particular way of defining a
crime has a long history, or is in widespread use, it is unlikely
that a defendant will be able to demonstrate that the State has
shifted the burden of proof as to what is an inherent element of
the offense, or has defined as a single crime multiple offenses
that are inherently separate. Conversely, a freakish definition of
the elements of a crime that finds no analogue in history [
Footnote 7] or in the criminal law of
other jurisdictions will lighten the defendant's burden.
Thus it is significant that Arizona's equation of the mental
states of premeditated murder and felony murder as species of the
blameworthy state of mind required to prove a single offense of
first-degree murder finds substantial historical and contemporary
echoes. At common law, murder was defined as the unlawful killing
of another human being with "malice aforethought." The intent to
kill and the intent to commit a felony were alternative aspects of
the single concept of "malice aforethought."
See 3 J.
Stephen, History of the Criminal Law of England 21-22 (1883).
Although American jurisdictions have modified the common law by
legislation classifying murder by degrees, the resulting statutes
have,
Page 501 U. S. 641
in most cases, retained premeditated murder and some form of
felony murder (invariably including murder committed in
perpetrating or attempting to perpetrate a robbery) as alternative
means of satisfying the mental state that first-degree murder
presupposes.
See 2 W. LaFave & A. Scott, Substantive
Criminal Law § 7.5, pp. 210-211, and nn. 21, 23, 24 (1986); ALI,
Model Penal Code § 210.2, p. 32, and n. 78 (1980). Indeed, the
language of the Arizona first-degree murder statute applicable here
is identical in all relevant respects to the language of the first
statute defining murder by differences of degree, passed by the
Pennsylvania Legislature in 1794. [
Footnote 8]
A series of state court decisions, beginning with the leading
case of
People v. Sullivan, 173 N.Y. 122, 65 N.E. 989
(1903), have agreed that
"it was not necessary that all the jurors should agree in the
determination that there was a deliberate and premeditated design
to take the life of the deceased, or in the conclusion that the
defendant was at the time engaged in the commission of a felony, or
an attempt to commit one; it was sufficient that each juror was
convinced beyond a reasonable doubt that the defendant had
committed the crime of murder in the first degree as that offense
is defined by the statute."
Id. at 127, 65 N.E. at 989-990.
See People v.
Milan, 9 Cal. 3d 185,
107 Cal. Rptr. 68, 507 P.2d 956 (1973);
People v. Travis,
170 Ill.App.3d 873, 121 Ill.Dec. 830, 525 N.E.2d 1137 (1988),
cert. denied, 489 U.S. 1024 (1989);
State v.
Fuhrmann, 257 N.W.2d 619
(Iowa 1977);
State v. Wilson, 220 Kan. 341,
552 P.2d 931
(1976);
Commonwealth v. Devlin, 335 Mass. 555,
141
N.E.2d 269 (1957);
People v. Embree, 70 Mich.App.
Page 501 U. S. 642
382, 246 N.W.2d 6 (1976);
State v. Buckman, 237 Neb.
936,
468 N.W.2d 589
(1991);
James v. State, 637
P.2d 862 (Okla.Crim.1981);
State v.
Tillman, 750 P.2d 546
(Utah 1987);
see also Brown v. State, 473 So. 2d
1260 (Fla.),
cert. denied, 474 U.S. 1038 (1985).
Although the state courts have not been unanimous in this respect,
see State v. Murray, 308 Ore. 496,
782 P.2d
157 (1989), there is sufficiently widespread acceptance of the
two mental states as alternative means of satisfying the
mens
rea element of the single crime of first-degree murder to
persuade us that Arizona has not departed from the norm.
Such historical and contemporary acceptance of Arizona's
definition of the offense and verdict practice is a strong
indication that they do not "
offen[d] some principle of justice
so rooted in the traditions and conscience of our people as to be
ranked as fundamental,'" Patterson, 432 U.S. at
432 U. S. 202
(quoting Speiser, 357 U.S. at 357 U. S.
523), for we recognize the high probability that legal
definitions, and the practices comporting with them, are unlikely
to endure for long, or to retain wide acceptance, if they are at
odds with notions of fairness and rationality sufficiently
fundamental to be comprehended in due process. Cf. Jackman v.
Rosenbaum Co., 260 U. S. 22,
260 U. S. 31
(1922) (Holmes, J.); Snyder, 291 U.S. at 291 U. S.
111.
This is not to say that either history or current practice is
dispositive. In
McMillan, for example, even though many
States had made the fact at issue (possession of a weapon) an
element of various aggravated offenses, we were unwilling to
conclude that Pennsylvania's decision to treat it as an aggravating
circumstance provable at sentencing by a mere preponderance of the
evidence deviated so far from the constitutional norm as to violate
the Due Process Clause. "That Pennsylvania's particular approach
has been adopted in few other States," we observed, "does not
render Pennsylvania's choice unconstitutional." 477 U.S. at
477 U. S. 90;
see also Martin, 480 U.S. at
480 U. S.
235-236 (relying on history, but not current practice);
Patterson, supra, 432 U.S. at
432 U. S. 211.
Conversely,
"'neither
Page 501 U. S. 643
the antiquity of a practice nor the fact of steadfast
legislative and judicial adherence to it through the centuries
insulates it from constitutional attack.'"
Pacific Mutual Life Ins. Co. v. Haslip, 499 U. S.
1,
499 U. S. 18
(1991) (quoting
Williams v. Illinois, 399 U.
S. 235,
399 U. S. 239
(1970)). In fine, history and current practice are significant
indicators of what we as a people regard as fundamentally fair and
rational ways of defining criminal offenses, which are nevertheless
always open to critical examination.
3
It is, as we have said, impossible to lay down any single
analytical model for determining when two means are so disparate as
to exemplify two inherently separate offenses. In the case before
us, however, any scrutiny of the two possibilities for proving the
mens rea of first degree murder may appropriately take
account of the function that differences of mental state perform in
defining the relative seriousness of otherwise similar or identical
criminal acts.
See generally ALI, Model Penal Code §
2.02(2) (1985) (defining differing mental states). If, then, two
mental states are supposed to be equivalent means to satisfy the
mens rea element of a single offense, they must reasonably
reflect notions of equivalent blameworthiness or culpability,
whereas a difference in their perceived degrees of culpability
would be a reason to conclude that they identified different
offenses altogether. Petitioner has made out no case for such moral
disparity in this instance.
The proper critical question is not whether premeditated murder
is necessarily the moral equivalent of felony murder in all
possible instances of the latter. Our cases have recognized that
not all felony murders are of identical culpability,
compare
Tison v. Arizona, 481 U. S. 137
(1987),
with Enmund v. Florida, 458 U.
S. 782 (1982), and the same point is suggested by
examining state murder statutes, which frequently diverge as to
what felonies may be the predicate of a felony murder conviction.
Compare, e.g., Tenn.Code Ann.
Page 501 U. S. 644
§ 39-13-202 (Supp.1990) (theft as predicate of first-degree
felony murder)
with, e.g., Ariz.Rev.Stat.Ann. § 13-1105.A
(1989) (theft not such a predicate).
The question, rather, is whether felony murder may ever be
treated as the equivalent of murder by deliberation, and in
particular whether robbery murder as charged in this case may be
treated as thus equivalent. This is, in fact, the very question we
considered only three Terms ago in the context of our capital
sentencing jurisprudence in
Tison, supra. There we held
that
"the reckless disregard for human life implicit in knowingly
engaging in criminal activities known to carry a grave risk of
death represents [such] a highly culpable mental state . . . that
[it] may be taken into account in making a capital sentencing
judgment when that conduct causes its natural, though not
inevitable, lethal result."
Id. at
481 U. S.
157-158. We accepted the proposition that this disregard
occurs, for example, when a robber
"shoots someone in the course of the robbery, utterly
indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim, as well as taking the
victim's property."
Id. at
481 U. S. 157.
Whether or not everyone would agree that the mental state that
precipitates death in the course of robbery is the moral equivalent
of premeditation, it is clear that such equivalence could
reasonably be found, which is enough to rule out the argument that
this moral disparity bars treating them as alternative means to
satisfy the mental element of a single offense. [
Footnote 9]
Page 501 U. S. 645
We would not warrant that these considerations exhaust the
universe of those potentially relevant to judgments about the
legitimacy of defining certain facts as mere means to the
commission of one offense. But they do suffice to persuade us that
the jury's options in this case did not fall beyond the
constitutional bounds of fundamental fairness and rationality. We
do not, of course, suggest that jury instructions requiring
increased verdict specificity are not desirable, and in fact the
Supreme Court of Arizona has itself recognized that separate
verdict forms are useful in cases submitted to a jury on
alternative theories of premeditated and felony murder.
State
v. Smith, 160 Ariz. 507, 513,
774 P.2d
811, 817 (1989). We hold only that the Constitution did not
command such a practice on the facts of this case.
II
Petitioner's second contention is that, under
Beck v.
Alabama, 447 U. S. 625
(1980), he was entitled to a jury instruction on the offense of
robbery, which he characterizes as a lesser included offense of
robbery murder. [
Footnote
10]
Beck held unconstitutional an Alabama statute that
prohibited lesser included
Page 501 U. S. 646
offense instructions in capital cases. Unlike the jury in
Beck, the jury here was given the option of finding
petitioner guilty of a lesser included noncapital offense,
second-degree murder. While petitioner cannot, therefore, succeed
under the strict holding of
Beck, he contends that the due
process principles underlying
Beck require that the jury
in a capital case be instructed on every lesser included noncapital
offense supported by the evidence, and that robbery was such an
offense in this case.
Petitioner misapprehends the conceptual underpinnings of
Beck. Our fundamental concern in
Beck was that a
jury convinced that the defendant had committed some violent crime,
but not convinced that he was guilty of a capital crime, might
nonetheless vote for a capital conviction if the only alternative
was to set the defendant free with no punishment at all. We
explained:
"[O]n the one hand, the unavailability of the third option of
convicting on a lesser included offense may encourage the jury to
convict for an impermissible reason -- its belief that the
defendant is guilty of some serious crime and should be punished.
On the other hand, the apparently mandatory nature of the death
penalty [in Alabama] may encourage it to acquit for an equally
impermissible reason -- that, whatever his crime, the defendant
does not deserve death. . . . [T]hese two extraneous factors . . .
introduce a level of uncertainty and unreliability into the
factfinding process that cannot be tolerated in a capital
case."
Id. at
447 U. S. 642
(footnote omitted). We repeatedly stressed the all-or-nothing
nature of the decision with which the jury was presented.
See
id. at
447 U. S. 629,
447 U. S. 630,
447 U. S. 632,
447 U. S. 634,
447 U. S. 637,
447 U. S.
642-643, and n.19. As we later explained in
Spaziano
v. Florida, 468 U. S. 447,
468 U. S. 455
(1984),
"[t]he absence of a lesser included offense instruction
increases the risk that the jury will convict . . . simply to avoid
setting the defendant free. . . . The goal of the
Beck
rule, in other words, is to eliminate the distortion of the
factfinding process
Page 501 U. S. 647
that is created when the jury is forced into an all-or-nothing
choice between capital murder and innocence."
See also Hopper v. Evans, 456 U.
S. 605,
456 U. S. 609
(1982). This central concern of
Beck simply is not
implicated in the present case, for petitioner's jury was not faced
with an all-or-nothing choice between the offense of conviction
(capital murder) and innocence.
Petitioner makes much of the fact that the theory of his defense
at trial was not that he murdered Mr. Grove without premeditation
(which would have supported a second-degree murder conviction), but
that, despite his possession of some of Mr. Grove's property,
someone else had committed the murder (which would have supported a
theft or robbery conviction, but not second-degree murder).
Petitioner contends that, if the jurors had accepted his theory,
they would have thought him guilty of robbery and innocent of
murder, but would have been unable to return a verdict that
expressed that view. Because
Beck was based on this
Court's concern about "rules that diminish the reliability of the
guilt determination" in capital cases, 447 U.S. at
447 U. S. 638,
the argument runs, the jurors should have been given the
opportunity "to return a verdict in conformity with their
reasonable view of the evidence." Reply Brief for Petitioner 8. The
dissent makes a similar argument.
Post at
501 U. S.
660.
The argument is unavailing, because the fact that the jury's
"third option" was second-degree murder, rather than robbery, does
not diminish the reliability of the jury's capital murder verdict.
To accept the contention advanced by petitioner and the dissent, we
would have to assume that a jury unconvinced that petitioner was
guilty of either capital or second-degree murder, but loath to
acquit him completely (because it was convinced he was guilty of
robbery), might choose capital murder rather than second-degree
murder as its means of keeping him off the streets. Because we can
see no basis to assume such irrationality, we are satisfied
that
Page 501 U. S. 648
the second-degree murder instruction in this case sufficed to
ensure the verdict's reliability.
That is not to suggest that
Beck would be satisfied by
instructing the jury on just any lesser included offense, even one
without any support in the evidence.
Cf. Roberts v.
Louisiana, 428 U. S. 325,
428 U. S.
334-335 (1976) (plurality opinion). In the present case,
however, petitioner concedes that the evidence would have supported
a second-degree murder conviction, Brief for Petitioner 18-19, and
that is adequate to indicate that the verdict of capital murder
represented no impermissible choice.
The judgment of the Supreme Court of Arizona is
Affirmed.
[
Footnote 1]
The full statute provided:
"A murder which is perpetrated by means of poison or lying in
wait, torture or by any other kind of wilful, deliberate or
premeditated killing, or which is committed in avoiding or
preventing lawful arrest or effecting an escape from legal custody,
or in the perpetration of, or attempt to perpetrate, arson, rape in
the first degree, robbery, burglary, kidnapping, or mayhem, or
sexual molestation of a child under the age of thirteen years, is
murder of the first degree. All other kinds of murder are of the
second degree."
The statute has since been revised, but both premeditated murder
and murder in the course of a robbery still constitute first degree
murder.
See Ariz.Rev.Stat.Ann. § 13-1105.A (1989).
[
Footnote 2]
Respondent contends that petitioner waived this contention by
failing to raise it in the lower Arizona courts. Brief for
Respondent 8-10. The Arizona Supreme Court, however, addressed the
contention on the merits, 163 Ariz. 411, 417,
788 P.2d
1162, 1168 (1989), thereby preserving the issue for our review.
See Orr v. Orr, 440 U. S. 268,
440 U. S.
274-275 (1979).
[
Footnote 3]
See also Wechsler, A Rationale of the Law of Homicide:
1, 37 Colum.L.Rev. 701, 702-703 (1937); Perkins, A Rationale of
Mens Rea, 52 Harv.L.Rev. 905, 926 (1939).
[
Footnote 4]
Although our vagueness cases support the notion that a
requirement of proof of specific illegal conduct is fundamental to
our system of criminal justice, the principle is not dependent upon
or limited by concerns about vagueness. A charge allowing a jury to
combine findings of embezzlement and murder would raise identical
problems regardless of how specifically embezzlement and murder
were defined.
[
Footnote 5]
The court identified this right as a concomitant of the federal
criminal defendant's Sixth Amendment right to a unanimous verdict,
and subsequent courts following
Gipson have adopted that
characterization.
E.g., United States v. Jeros, 833 F.2d
455 (CA3 1987). For the reasons given earlier, we think the right
is more accurately characterized as a due process right than as one
under the Sixth Amendment. Although this difference in
characterization is important in some respects (chiefly, because a
state criminal defendant, at least in noncapital cases, has no
federal right to a unanimous jury verdict,
see Johnson v.
Louisiana, 406 U. S. 356
(1972);
Apodaca v. Oregon, 406 U.
S. 404 (1972)), it is immaterial to the problem of how
to go about deciding what level of verdict specificity is
constitutionally necessary.
[
Footnote 6]
Because statutes frequently enumerate alternatives that clearly
are mere means of satisfying a single element of an offense,
adoption of the dissent's approach of requiring a specific verdict
as to every alternative would produce absurd results. For example,
the Arizona first-degree murder statute at issue here prohibited,
inter alia, "wilful, deliberate
or premeditated
killing." Ariz.Rev.Stat.Ann. § 1352 (Supp.1973) (emphasis added).
Under the dissent's approach, juries in prosecutions brought under
the statute presumably should have been required to deliver
specific verdicts as to each of the three: willfulness,
deliberation, and premeditation.
[
Footnote 7]
We note, however, the perhaps obvious proposition that history
will be less useful as a yardstick in cases dealing with modern
statutory offenses lacking clear common law roots than it is in
cases, like this one, that deal with crimes that existed at common
law.
[
Footnote 8]
The Pennsylvania statute provided:
"[A]ll murder, which shall be perpetrated by means of poison, or
by lying in wait, or by any other kind of willful, deliberate and
premeditated killing, or which shall be committed in the
perpetration, or attempt to perpetrate any arson, rape, robbery, or
burglary, shall be deemed murder of the first degree; and all other
kinds of murder shall be deemed murder in the second degree."
1794 Pa.Laws, ch. 1766, § 2.
[
Footnote 9]
The dissent's focus on the "risks of different punishment,"
post at
501 U. S. 658,
and n. 4, for premeditated and felony murder ignores the fact that
the Arizona sentencing statute applicable to petitioner,
Ariz.Rev.Stat.Ann. § 13-453 (Supp.1973), authorized the same
maximum penalty (death) for both means of committing first-degree
murder.
See McMillan v. Pennsylvania, 477 U. S.
79,
477 U. S. 87-88
(1986) (relying on fact that under Pennsylvania law possession of a
weapon "neither alters the maximum penalty for the crime committed
nor creates a separate offense calling for a separate penalty").
Moreover, the dissent's concern that a general verdict does not
provide the sentencing judge with sufficient information about the
jury's findings to provide a proper premise for the decision
whether or not to impose the death penalty,
post at
501 U. S.
658-659, goes only to the permissibility of a death
sentence imposed in such circumstances, not to the issue currently
before us, which is the permissibility of the conviction. To make
the point by example, even if the trial judge in this case had
satisfied any possible specific verdict concerns by instructing the
jurors that they were required to agree on a single theory of the
crime, the dissent's "insufficient sentencing information" concern
would remain unless the judge had also taken the additional step (a
step unrelated to petitioner's right to jury agreement on the
specific conduct he committed) of requiring them to return separate
forms of verdict. The only relevant question for present purposes
is what the jury must decide, not what information it must provide
the sentencing judge.
[
Footnote 10]
Petitioner also contends that the jury should have been
instructed on the offense of theft, against which respondent argues
that any claim for a lesser included theft offense instruction was
waived. Given respondent's concession that petitioner has preserved
his claim for a robbery instruction, and our view of the scope of
Beck, see infra at
501 U. S.
646-648, there is no need to resolve this waiver
issue.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
The crime for which a jury in Yavapai County, Arizona, convicted
Edward Harold Schad in 1985 has existed in the Anglo-American legal
system, largely unchanged, since at least the early 16th century,
see 3 J. Stephen, A History of the Criminal Law of England
45 (1883); R. Moreland, Law of Homicide 9-10 (1952). The common law
crime of murder was the unlawful killing of a human being by a
person with "malice aforethought" or "malice prepense," which
consisted of an intention to kill or grievously injure, knowledge
that an act or omission would probably cause death or grievous
injury, an intention to commit a felony, or an intention to resist
lawful arrest. Stephen,
supra, at 22;
see also 4
W. Blackstone, Commentaries 198-201 (1769); 1 M. Hale, Pleas of the
Crown 451-466 (1st Am. ed. 1847).
The common law recognized no degrees of murder; all unlawful
killing with malice aforethought received the same punishment --
death.
See F. Wharton, Law of Homicide 147 (3d ed.1907);
Moreland,
supra, at 199. The rigor of this rule led to
widespread dissatisfaction in this country.
See McGautha v.
California, 402 U. S. 183,
402 U. S. 198
(1971). In 1794,
Page 501 U. S. 649
Pennsylvania divided common law murder into two offenses,
defining the crimes thus:
"[A]ll murder which shall be perpetrated by means of poison, or
lying in wait, or by any other kind of willful, deliberate, or
premeditated killing; or which shall be committed in the
perpetration, or attempt to perpetrate any arson, rape, robbery, or
burglary, shall be deemed murder of the first degree; and all other
kinds of murder shall be deemed murder in the second degree."
1794 Pa.Laws, ch. 1766, § 2. That statute was widely copied, and
down to the present time, the United States and most States have a
single crime of first-degree murder that can be committed by
killing in the course of a robbery as well as premeditated killing.
See, e.g., 18 U.S.C. § 1111; Cal.Penal Code Ann. § 189
(West 1988 and Supp.1991); Kan.Stat.Ann. § 21-3401 (Supp.1990);
Mich.Comp.Laws Ann. § 750.316 (1991); Neb.Rev.Stat. § 28-303
(1989).
* It is Arizona's
variant of the 1794 Pennsylvania statute under which Schad was
convicted in 1985 and which he challenges today.
Schad and the dissenting Justices would in effect have us
abolish the crime of first-degree murder and declare that the Due
Process Clause of the Fourteenth Amendment requires the subdivision
of that crime into (at least) premeditated murder and felony
murder. The plurality rejects that course -- correctly, but not, in
my view, for the correct reason.
As the plurality observes, it has long been the general rule
that, when a single crime can be committed in various ways, jurors
need not agree upon the mode of commission.
See, e.g., People
v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903);
cf. H.
Joyce, Indictments §§ 561-562, pp. 654-657 (2d ed.1924); W. Clark,
Criminal Procedure §§ 99-103,
Page 501 U. S. 650
pp. 322-330 (2d ed.1918); 1 J. Bishop, Criminal Procedure §§
434-438, pp. 261-265 (2d ed. 1872). That rule is not only
constitutional, it is probably indispensable in a system that
requires a unanimous jury verdict to convict. When a woman's
charred body has been found in a burned house, and there is ample
evidence that the defendant set out to kill her, it would be absurd
to set him free because six jurors believe he strangled her to
death (and caused the fire accidentally in his hasty escape), while
six others believe he left her unconscious and set the fire to kill
her. While that seems perfectly obvious, it is also true, as the
plurality points out,
see ante at
501 U. S. 633,
that one can conceive of novel "umbrella" crimes (a felony
consisting of either robbery or failure to file a tax return) where
permitting a 6-6 verdict would seem contrary to due process.
The issue before us is whether the present crime falls into the
former or the latter category. The plurality makes heavy weather of
this issue, because it starts from the proposition that
"neither the antiquity of a practice nor the fact of steadfast
legislative and judicial adherence to it through the centuries
insulates it from constitutional attack,"
ante at
501 U. S.
642-643 (internal quotations omitted). That is true
enough with respect to some constitutional attacks, but not, in my
view, with respect to attacks under either the procedural
component,
see Pacific Mutual Life Insurance Co. v.
Haslip, 499 U. S. 1,
499 U. S. 28-38
(1991) (SCALIA, J., concurring in judgment), or the so-called
"substantive" component,
see Michael H. v. Gerald D.,
491 U. S. 110,
491 U. S.
121-130 (1989) (plurality opinion), of the Due Process
Clause. It is precisely the historical practices that
define what is "due." "Fundamental fairness" analysis may
appropriately be applied to
departures from traditional
American conceptions of due process; but when judges test their
individual notions of "fairness" against an American tradition that
is deep and broad and continuing, it is not the tradition that is
on trial, but the judges.
Page 501 U. S. 651
And that is the case here. Submitting killing in the course of a
robbery and premeditated killing to the jury under a single charge
is not some novel composite that can be subjected to the indignity
of "fundamental fairness" review. It was the norm when this country
was founded, was the norm when the Fourteenth Amendment was adopted
in 1868, and remains the norm today. Unless we are here to invent a
Constitution, rather than enforce one, it is impossible that a
practice as old as the common law and still in existence in the
vast majority of States does not provide that process which is
"due."
If I did not believe that, I might well be with the dissenters
in this case. Certainly the plurality provides no satisfactory
explanation of why (apart from the endorsement of history) it is
permissible to combine in one count killing in the course of
robbery and killing by premeditation. The only point it makes is
that the depravity of mind required for the two may be considered
morally equivalent.
Ante at
501 U. S.
643-645. But the petitioner here does not complain about
lack of moral equivalence: he complains that, as far as we know,
only six jurors
believed he was participating in a
robbery, and only six
believed he intended to kill.
Perhaps moral equivalence is a
necessary condition for
allowing such a verdict to stand, but surely the plurality does not
pretend that it is
sufficient. (We would not permit, for
example, an indictment charging that the defendant assaulted either
X on Tuesday or Y on Wednesday, despite the "moral equivalence" of
those two acts.) Thus, the plurality approves the Arizona practice
in the present case because it meets
one of the conditions
for constitutional validity. It does not say what the
other conditions are, or why the Arizona practice meets
them. With respect, I do not think this delivers the "critical
examination,"
ante at
501 U. S. 643,
which the plurality promises as a substitute for reliance upon
historical practice. In fact, I think its analysis ultimately
relies upon nothing but historical practice (whence does it derive
even the "moral equivalence" requirement?) --
Page 501 U. S. 652
but to acknowledge that reality would be to acknowledge a
rational limitation upon our power, which bob-tailed "critical
examination" obviously is not.
"Th[e] requirement of [due process] is met if the trial is had
according to the settled course of judicial proceedings. Due
process of law is process due according to the law of the
land."
Walker v. Sauvinet, 92 U. S. 90,
92 U. S. 93 (1876)
(citation omitted).
With respect to the second claim asserted by petitioner, I agree
with JUSTICE SOUTER's analysis, and join
501 U.
S. For these reasons, I would affirm the judgment of the
Supreme Court of Arizona.
* Still other States never established degrees of murder, and
retain a single crime of "murder" that encompasses both
premeditated killing and killing in the course of a robbery.
See, e.g., S.C.Code § 13-10 (1985).
JUSTICE WHITE, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and
JUSTICE STEVENS join, dissenting.
Because I disagree with the result reached on each of the two
separate issues before the Court, and because what I deem to be the
proper result on either issue alone warrants reversal of
petitioner's conviction, I respectfully dissent.
I
As
In re Winship, 397 U. S. 358
(1970), makes clear, due process mandates "proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which [the defendant] is charged."
Id. at
397 U. S. 364.
In finding that the general jury verdict returned against
petitioner meets the requirements of due process, the plurality
ignores the import of
Winship's holding. In addition, the
plurality mischaracterizes the nature of the constitutional problem
in this case.
It is true that we generally give great deference to the States
in defining the elements of crimes. I fail to see, however, how
that truism advances the plurality's case. There is no failure to
defer in recognizing the obvious: that premeditated murder and
felony murder are alternative courses of conduct by which the crime
of first-degree murder may be established. The statute
provides:
"A murder which is perpetrated by means of poison or lying in
wait, torture or by any other kind of wilful, deliberate
Page 501 U. S. 653
or premeditated killing, or which is committed in avoiding or
preventing lawful arrest or effecting an escape from legal custody,
or in the perpetration of, or attempt to perpetrate, arson, rape in
the first degree, robbery, burglary, kidnapping, or mayhem, or
sexual molestation of a child under the age of thirteen years, is
murder of the first degree. All other kinds of murder are of the
second degree."
Ariz.Rev.Stat.Ann. § 13-452 (Supp.1973). The statute thus sets
forth three general categories of conduct which constitute
first-degree murder: a "wilful, deliberate or premeditated
killing"; a killing committed to avoid arrest or effect escape; and
a killing which occurs during the attempt or commission of various
specified felonies. Here, the prosecution set out to convict
petitioner of first-degree murder by either of two different paths,
premeditated murder and felony murder/robbery. Yet while these two
paths both lead to a conviction for first-degree murder, they do so
by divergent routes possessing no elements in common except the
fact of a murder. In his closing argument to the jury, the
prosecutor himself emphasized the difference between premeditated
murder and felony murder:
"There are two types of first degree murder, two ways for first
degree murder to be committed. [One] is premeditated murder. There
are three elements to that. One, that a killing take place, that
the defendant caused someone's death. Secondly, that he do so with
malice. And malice simply means that he intended to kill or that he
was very reckless in disregarding the life of the person he killed.
. . ."
"And along with the killing and the malice, attached to that
killing is a third element, that of premeditation, which simply
means that the defendant contemplated that he would cause death, he
reflected upon that. "
Page 501 U. S. 654
"The other type of first degree murder, members of the jury, is
what we call felony murder. It only has two components
[
sic] parts. One, that a death be caused, and, two, that
that death be caused in the course of a felony, in this case a
robbery. And so if you find that the defendant committed a robbery
and killed in the process of that robbery, that also is first
degree murder."
App. 6-7. Unlike premeditated murder, felony murder does not
require that the defendant commit the killing or even intend to
kill, so long as the defendant is involved in the underlying
felony. On the other hand, felony murder -- but not premeditated
murder -- requires proof that the defendant had the requisite
intent to commit and did commit the underlying felony.
State v.
McLoughlin, 139 Ariz. 481, 485,
679 P.2d 504,
508 (1984). Premeditated murder, however, demands an intent to
kill, as well as premeditation, neither of which is required to
prove felony murder. Thus, contrary to the plurality's assertion,
see ante at
501 U. S. 639,
the difference between the two paths is not merely one of a
substitution of one
mens rea for another. Rather, each
contains separate elements of conduct and state of mind which
cannot be mixed and matched at will. [
Footnote 2/1] It is particularly fanciful to equate
Page 501 U. S. 655
an intent to do no more than rob with a premeditated intent to
murder.
Consequently, a verdict that simply pronounces a defendant
"guilty of first-degree murder" provides no clues as to whether the
jury agrees that the three elements of premeditated murder or the
two elements of felony murder have been proven beyond a reasonable
doubt. Instead, it is entirely possible that half of the jury
believed the defendant was guilty of premeditated murder and not
guilty of felony murder/robbery, while half believed exactly the
reverse. To put the matter another way, the plurality affirms this
conviction without knowing that even a single element of either of
the ways for proving first-degree murder, except the fact of a
killing, has been found by a majority of the jury, let alone found
unanimously by the jury, as required by Arizona law. A defendant
charged with first-degree murder is at least entitled to a verdict
-- something petitioner did not get in this case as long as the
possibility exists that no more than six jurors voted for any one
element of first-degree murder, except the fact of a killing.
[
Footnote 2/2]
The means by which the plurality attempts to justify the result
it reaches do not withstand scrutiny. In focusing on
Page 501 U. S. 656
our vagueness cases,
see ante at
501 U. S.
632-633, the plurality misses the point. The issue is
not whether the statute here is so vague that an individual cannot
reasonably know what conduct is criminalized. Indeed, the statute's
specificity renders our vagueness cases inapplicable. The problem
is that the Arizona statute, under a single heading, criminalizes
several alternative patterns of conduct. While a State is free to
construct a statute in this way, it violates due process for a
State to invoke more than one statutory alternative, each with
different specified elements, without requiring that the jury
indicate on which of the alternatives it has based the defendant's
guilt.
The plurality concedes that
"nothing in our history suggests that the Due Process Clause
would permit a State to convict anyone under a charge of 'Crime' so
generic that any combination of jury findings of embezzlement,
reckless driving, murder, burglary, tax evasion, or littering, for
example, would suffice for conviction."
Ante at
501 U. S. 633.
But this is very close to the effect of the jury verdict in this
case. Allowing the jury to return a generic verdict following a
prosecution on two separate theories with specified elements has
the same effect as a jury verdict of "guilty of crime" based on
alternative theories of embezzlement or reckless driving. Thus, the
statement that, "[i]n Arizona, first degree murder is only one
crime regardless whether it occurs as a premeditated murder or a
felony murder,"
State v. Encinas, 132 Ariz. 493, 496,
647 P.2d 624,
627 (1982), neither recognizes nor resolves the issue in this
case.
The plurality likewise misses the mark in attempting to compare
this case to those in which the issue concerned proof of facts
regarding the particular means by which a crime was committed.
See ante at
501 U. S.
631-632. In the case of burglary, for example, the
manner of entering is not an element of the crime; thus,
Winship would not require proof beyond a reasonable doubt
of such factual details as whether a defendant pried open a window
with a screwdriver or a crowbar.
Page 501 U. S. 657
It would, however, require the jury to find beyond a reasonable
doubt that the defendant in fact broke and entered, because those
are the "fact[s] necessary to constitute the crime." 397 U.S. at
397 U. S. 364.
[
Footnote 2/3]
Nor do our cases concerning the shifting of burdens and the
creation of presumptions help the plurality's cause.
See
ante at
501 U. S.
638-639. Although this Court consistently has given
deference to the State's definition of a crime, the Court also has
made clear that, having set forth the elements of a crime, a State
is not free to remove the burden of proving one of those elements
from the prosecution. For example, in
Sandstrom v.
Montana, 442 U. S. 510
(1979), the Court recognized that,
"under Montana law, whether the crime was committed purposely or
knowingly is a fact necessary to constitute the crime of deliberate
homicide,"
and stressed that the State therefore could not shift the burden
of proving lack of intent to the defendant.
Id. at
442 U. S.
520-521. Conversely, in
Patterson v. New York,
432 U. S. 197,
432 U. S.
205-206 (1977), the Court found that it did not violate
due process to require a defendant to establish the affirmative
defense of extreme emotional disturbance, because
"[t]he death, the intent to kill, and causation are the facts
that the State is required to prove beyond a reasonable doubt if a
person is to be convicted of murder. No further facts are either
presumed or inferred in order to constitute the crime."
Here, the question is not whether the State "must be permitted a
degree of flexibility" in defining the elements of the offense.
See ante at
501 U. S. 638.
Surely it is entitled to that deference. But having determined that
premeditated murder and felony murder are separate paths to
establishing first-degree murder, each containing a separate set of
elements from the other, the State must
Page 501 U. S. 658
be held to its choice. [
Footnote
2/4]
Cf. Evitts v. Lucey, 469 U.
S. 387,
469 U. S. 401
(1985). To allow the State to avoid the consequences of its
legislative choices through judicial interpretation would permit
the State to escape federal constitutional scrutiny even when its
actions violate rudimentary due process.
The suggestion that the state of mind required for felony
murder/robbery and that for premeditated murder may reasonably be
considered equivalent,
see ante at
501 U. S. 644,
is not only unbelievable, but it also ignores the distinct
consequences that may flow from a conviction for each offense at
sentencing. Assuming that the requisite statutory aggravating
circumstance exists, the death penalty may be imposed for
premeditated murder, because a conviction necessarily carries with
it a finding that the defendant intended to kill.
See
Ariz.Rev.Stat.Ann. § 13-703 (1989). This is not the case with
felony murder, for a conviction only requires that the death occur
during the felony; the defendant need not be proven to be the
killer. Thus, this Court has required that, in order for the death
penalty to be imposed for felony murder, there must be a finding
that the defendant in fact killed, attempted to kill, or intended
that a killing take place or that lethal force be used,
Enmund
v. Florida, 458 U. S. 782,
458 U. S. 797
(1982), or that the defendant was a major participant in
Page 501 U. S. 659
the felony and exhibited reckless indifference to human life,
Tison v. Arizona, 481 U. S. 137,
481 U. S. 158
(1987).
In the instant case, the general verdict rendered by the jury
contained no finding of intent or of actual killing by petitioner.
The sentencing judge declared, however:
"[T]he court does consider the fact that a felony murder
instruction was given in mitigation, however there is not evidence
to indicate that this murder was merely incidental to a robbery.
The nature of the killing itself belies that. . . ."
"The court finds beyond a reasonable doubt that the defendant
attempted to kill Larry Grove, intended to kill Larry Grove, and
that defendant did kill Larry Grove."
"The victim was strangled to death by a ligature drawn very
tightly about the neck and tied in a double knot. No other
reasonable conclusion can be drawn from the proof in this case,
notwithstanding the felony murder instruction."
Tr. 8-9 (Aug. 29, 1985). Regardless of what the jury actually
had found in the guilt phase of the trial, the sentencing judge
believed the murder was premeditated. Contrary to the plurality's
suggestion,
see ante at
501 U. S.
644-645, n. 9, the problem is not that a general verdict
fails to provide the sentencing judge with sufficient information
concerning whether to impose the death sentence. The issue is much
more serious than that. If, in fact, the jury found that
premeditation was lacking, but that petitioner had committed felony
murder/robbery, then the sentencing judge's finding was in direct
contravention of the jury verdict. It is clear, therefore, that the
general jury verdict creates an intolerable risk that a sentencing
judge may subsequently impose a death sentence based on findings
that contradict those made by the jury during the guilt phase, but
not revealed by their general verdict.
Cf. State v. Smith,
160 Ariz. 507, 513,
774 P.2d
811, 817 (1989).
Page 501 U. S. 660
II
I also cannot agree that the requirements of
Beck v.
Alabama, 447 U. S. 625
(1980), were satisfied by the instructions and verdict forms in
this case.
Beck held that,
"when the evidence unquestionably establishes that the defendant
is guilty of a serious, violent offense -- but leaves some doubt
with respect to an element that would justify conviction of a
capital offense -- the failure to give the jury the 'third option'
of convicting on a lesser included offense would seem inevitably to
enhance the risk of an unwarranted conviction."
Id. at
447 U. S. 637.
The majority finds
Beck satisfied because the jury here
had the opportunity to convict petitioner of second-degree murder.
See ante at
501 U. S.
646-648. But that alternative provided no "third option"
to a choice between convicting petitioner of felony murder/robbery
and acquitting him completely, because, as the State concedes,
see Tr. of Oral Arg. 51-52, second-degree murder is a
lesser included offense only of premeditated murder. Thus, the
Arizona Supreme Court has declared that
"'[t]he jury may not be instructed on a lesser degree of
murder than first degree where, under the evidence, it was
committed in the course of a robbery.'"
State v. Clayton, 109 Ariz. 587, 595,
514 P.2d 720,
728 (1973), quoting
State v. Kruchten, 101 Ariz. 186, 196,
417 P.2d 510,
520 (1966),
cert. denied, 385 U.S. 1043 (1967) (emphasis
added). Consequently, if the jury believed that the course of
events led down the path of felony murder/robbery, rather than
premeditated murder, it could not have convicted petitioner of
second-degree murder as a legitimate "third option" to capital
murder or acquittal.
The State asserts that felony murder has no lesser included
offenses. [
Footnote 2/5] In order
for a defendant to be convicted of felony
Page 501 U. S. 661
murder, however, there must be evidence to support a conviction
on the underlying felony, and the jury must be instructed as to the
elements of the underlying felony. Although the jury need not find
that the underlying felony was completed, the felony murder statute
requires there to be at least an attempt to commit the crime. As a
result, the jury could not have convicted petitioner of felony
murder/robbery without first finding him guilty of robbery or
attempted robbery. [
Footnote 2/6]
Indeed, petitioner's first conviction was reversed because the
trial judge had failed to instruct the jury on the elements of
robbery. 142 Ariz. 619,
691 P.2d
710 (1984). As the Arizona Supreme Court declared,
"Fundamental error is present when a trial judge fails to
instruct on matters vital to a proper consideration of the
evidence. Knowledge of the elements of the underlying felonies was
vital for the jurors to properly consider a felony murder
theory."
Id. at 620-621, 691 P.2d at 711-712 (citation
omitted).
It is true that the rule in
Beck only applies if there
is in fact a lesser included offense to that with which the
defendant is charged, for
"[w]here no lesser included offense exists, a lesser included
offense instruction detracts from, rather than enhances, the
rationality of the process."
Spaziano v. Florida, 468 U. S. 447,
468 U. S. 455
(1984). But while deference is due state legislatures and courts in
defining crimes, this deference has constitutional limits. In the
case of a compound
Page 501 U. S. 662
crime such as felony murder, in which one crime must be proven
in order to prove the other, the underlying crime must, as a matter
of law, be a lesser included offense of the greater.
Thus, in the instant case, robbery was a lesser included offense
of the felony murder/robbery for which petitioner was tried. The
Arizona Supreme Court acknowledged that "the evidence supported an
instruction and conviction for robbery," had robbery been a lesser
included offense of felony murder/robbery. 163 Ariz. 411, 417,
788 P.2d
1162, 1168 (1989). Consequently, the evidence here met
"the independent prerequisite for a lesser included offense
instruction that the evidence at trial must be such that a jury
could rationally find the defendant guilty of the lesser offense,
yet acquit him of the greater."
Schmuck v. United States, 489 U.
S. 705,
489 U. S. 716,
n. 8 (1989);
see Keeble v. United States, 412 U.
S. 205,
412 U. S. 208
(1973). Due process required that the jury be given the opportunity
to convict petitioner of robbery, a necessarily lesser included
offense of felony murder/robbery.
See Stevenson v. United
States, 162 U. S. 313,
162 U. S.
319-320 (1896).
Nor is it sufficient that a "third option" was given here for
one of the prosecution's theories, but not the other. When the
State chooses to proceed on various theories, each of which has
lesser included offenses, the relevant lesser included instructions
and verdict forms on each theory must be given in order to satisfy
Beck. Anything less renders
Beck, and the due
process it guarantees, meaningless.
With all due respect, I dissent.
[
Footnote 2/1]
Changes to the Arizona first-degree murder statute since the
date of the murder in question make it even clearer that felony
murder and premeditated murder have different elements and involve
different
mentes reae. The statute now provides that the
two offenses are alternative means of establishing first-degree
murder. First, a person is guilty if "[i]ntending or knowing that
his conduct will cause death, such person causes the death of
another with premeditation." Ariz.Rev.Stat.Ann. § 13-1105(A)(1)
(1989). Second, a person is guilty if,
"[a]cting either alone or with one or more other persons such
person commits or attempts to commit [any one of a series of
specified felonies], and in the course of and in furtherance of
such offense or immediate flight from such offense, such person or
another person causes the death of any person."
§ 13-1105(A)(2). The antecedent of the current statute, which
used substantially the same language, took effect on October 1,
1978, less then two months after the killing at issue occurred.
1977 Ariz.Sess.Laws, Ch. 142, § 60.
[
Footnote 2/2]
Even the Arizona Supreme Court has acknowledged that the lack of
information concerning juror agreement may call into question the
validity of a general jury verdict when the prosecution proceeds
under alternative theories.
State v. Smith, 160 Ariz. 507,
513,
774 P.2d
811, 817 (1989). Indeed, petitioner's first trial exemplified
this danger. There the State proceeded on three theories:
premeditated murder, felony murder/robbery, and felony
murder/kidnapping. The trial judge failed to instruct the jury on
either of the underlying felonies, and the Arizona Supreme Court
held this to be fundamental error. 142 Ariz. 619, 620,
691 P.2d
710, 711 (1984). Petitioner's conviction was reversed because
it was impossible to tell from the general jury verdict whether
petitioner had been found guilty of premeditated murder or felony
murder, for which the instructions had been deficient.
Id.
at 621, 691 P.2d at 712.
Cf. Sandstrom v. Montana,
442 U. S. 510,
442 U. S. 526
(1979).
[
Footnote 2/3]
For similar reasons, the plurality's focus on the statutorily
enumerated means of satisfying a given element of an offense,
see ante at
501 U. S. 636,
n. 6, is misplaced.
[
Footnote 2/4]
Even if the crime of first-degree murder were generic, that
different categories of the offense carry risks of different
punishment is constitutionally significant. In
Mullaney v.
Wilbur, 421 U. S. 684
(1975), for example, this Court concluded that the absence of "heat
of passion on sudden provocation," while not an expressly stated
element of the offense of "homicide," was essential to reduce the
punishment category of the crime from that of murder to
manslaughter.
Id. at
421 U. S. 697,
421 U. S. 699.
Consequently, the State there violated
In re Winship,
397 U. S. 358
(1970), and principles of due process by requiring the defendant to
establish the absence of the intent required for murder, and
thereby rebut the presumption of malice.
Mullaney, supra,
421 U.S. at
421 U. S.
703-704. As discussed below, the disparate intent
requirements of premeditated murder and felony murder have
life-or-death consequences at sentencing.
[
Footnote 2/5]
Arizona law has not been consistent on this point. Arizona cases
have long said that
"there is no lesser included
homicide offense of the
crime of felony murder, since the
mens rea necessary to
satisfy the premeditation element of first degree murder is
supplied by the specific intent required for the felony."
State v. Arias, 131 Ariz. 441, 444,
641 P.2d 1285,
1288 (1982)
(emphasis added). Recent cases have omitted the crucial word
"homicide."
See, e.g, State v. LaGrand, 153 Ariz. 21,
29-30,
734 P.2d 563,
571-572,
cert. denied, 484 U.S. 872-873 (1987).
[
Footnote 2/6]
In this Court's recent decision in
Schmuck v. United
States, 489 U. S. 705
(1989), we adopted the "elements" test for defining "necessarily
included" offenses for purposes of Federal Rule of Criminal
Procedure 31(c).
"Under this test, one offense is not 'necessarily included' in
another unless the elements of the lesser offense are a subset of
the elements of the charged offense."
Schmuck, supra, at
489 U. S. 716.
See also Berra v. United States, 351 U.
S. 131,
351 U. S. 134
(1956). Here that test is met, for petitioner could not be
convicted of felony murder/robbery unless the jury found that a
robbery, or an attempt to commit robbery, had occurred.