Dissenting Opinion
dissenting.
This Cоurt has unequivocally stated that a sentencer in a capital case must be permitted to consider, as evidence of mitigation, any aspect of a defendant’s character or record, and any circumstances of the offense, that the defendant offers as a basis for a sentence less than death. Lockett v. Ohio,
I
The relevant facts of this case are quite straightforward. The defendant took the stand at the sentеncing phase of his trial and testified about certain statutory mitigating factors. Trial counsel then asked: “Do you know anything else that you wish to tell this jury in mitigation of this offense of which you havе been convicted?” The prosecutor objected to this question, arguing that it was too broad because “it must follow the statute.” Trial counsel tried to phrase the question differently, and again the objection was sustained. The trial court accepted the prosecution argument that the Florida death penalty statute permitted only evidenсe of statutory mitigating factors. Since, under this view, all evidence of nonstatutory mitigating factors was inadmissible, the trial judge did not permit the defendant to describe to the jury the mitigating circumstances of his background, and of the offense.
There is no dispute that the trial judge violated the mandate of Lockett v. Ohio when he ruled that evidence of nonstatutory mitigating factors was not admissible. However, defendant’s trial counsel, who continued as appellate counsel, did not raise this issue either on direct appeal in the state courts, or in the first petition for certiorari filed with this Court.
Thereafter the defendant obtained new counsel, who filed a petition for habeas corpus in the Florida Supreme Court, which has original jurisdiction to address claims of ineffective assistance of counsel before that court. In a terse paragraph, the court dismissed the argument that appellate counsel was ineffective. The court ruled that appellate counsel could not be considered incompetent for failure to raise the claim on appeal because he was procedurally precluded from raising it. Under Florida law, the court explained, counsel was required to make a proffer of the attempted testimony after the trial judge еxcluded it. Thus, the court effectively ruled, there could have been no prejudice from the failure to raise the issue on appeal, since the court would not have аddressed it anyway. Two justices dissented on the
II
Because of the basic difference between the death penalty and all other punishments, this Court often has recognizеd that there is a corresponding difference in the need for reliability in determining whether the death sentence is appropriately imposed in a particular casе. Thus, we have recognized that “[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine,” Jurek v. Texas,
The premise оf this unfolding doctrine is that a sentence imposed without evidence of facts and circumstances offered in mitigation creates a risk that the death penalty will be imposеd in spite of factors that call for a different penalty. As The Chief Justice has written: “When the choice is between life and death, that risk is unacceptable and incompаtible with the commands of the Eighth and Fourteenth Amendments.” Lockett v. Ohio, supra, at 605. Yet, when a court closes its eyes to clear Lockett error, as the state court did in this case, and instead rests on technical procedural rules, it accepts the risk to which The Chief Justice refers and comes down on the side of death.
Nor does The Chief Justice stand alone in his recognition that a sentencing body’s failure to consider all mitigating evidenсe seriously and unacceptably raises the possibility that a person will die in error. Infusing many opinions from this Court is the sense that Lockett is so fundamental, and the result of an improper exclusion of mitigating evidence potentially of such great magnitude, that such errors simply must be corrected. Thus, writing in Eddings v. Oklahoma, Justice O’Connor observed: “Because the trial court’s failure to cоnsider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation
The court reviewing the defendant’s sentence would have had precisely such a duty to remand this ease for resentencing, had counsel either raised the Lockett issue before that court, or had the court noted it of its own account. Indeed, the need to consider the claim, and remand, is particularly compelling when the trial court has blocked the defendant’s submission of all nonstatu-tory mitigating factors. The State Supreme Court’s willingness to blink at such potentially profound and consequential error, as evidenced by its cursory dismissal of the ineffective-assistance claim on the ground that the error would not have been addressed anyway, jeopardizes what I believe to be the foundation on which this Court’s current death penalty jurisprudence rests. And, as I have notеd, this concern is especially palpable under the facts of this case. The defendant has indicated that if he had been permitted to testify, he would have told the jury that his сo-participants were not sentenced to death; that the victim drew a gun on him; and that he came from a background of extreme poverty, had worked steadily since сhildhood, and had a long history of concern for family and friends. Such testimony is paradigmatic of the evidence whose admission is fostered and protected by Lockett and Eddings, and yet it was excluded here.
Ill
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,
Lead Opinion
Sup. Ct. Fla. Certiorari denied.