Lead Opinion
delivered the opinion of the Court.
Under Florida law, after a defendant is found guilty of capital murder, a separate jury proceeding is held as the first of two steps in deciding whether his sentence should be life imprisonment or death. Fla. Stat. §921.141(1) (1991). At the close of such aggravating and mitigating evidence as the prosecution and the defense may introduce, the trial judge charges the jurors to weigh whatever aggravating and mitigating circumstances or factors they may find, and to reach an advisory verdict by majority vote. §921.141(2). The jury does not report specific findings of aggravating and mitigating circumstances, but if, at the second sentencing step, the judge decides upon death, he must issue a written statement of the circumstances he finds. §921.141(3). A death sentence is then subject to automatic review by the Supreme Court of Florida. §921.141(4).
A Florida trial court sentenced petitioner to death after a jury so recommended, and the Supreme Court of Florida affirmed. We must determine whether, as petitioner claims, the sentencer in his case weighed either of two aggravating factors that he claims were invalid, and if so, whether the State Supreme Court cured the error by holding it harmless.
I
On New Year’s Eve 1981, petitioner Dennis Sochor met a woman in a bar in Broward County, Florida. Sochor tried to rape her after they had left together, and her resistance angered him to the point of choking her to death. He was indicted for first-degree murder and kidnaping and, after a jury trial, was found guilty of each offense.
At the penalty hearing, aggravating and mitigating evidence was offered, and the jury was instructed on the possibility of finding four aggravating circumstances, two of which were that
“the crime for which the defendant is to be sеntenced was especially wicked, evil, atrocious or cruel, and [that] the crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner, without any pretense of moral or legal justification.” App. 326-327.
The judge then explained to the jury that it could find certain statutory and any nonstatutory mitigating circumstances, which were to be weighed against any aggravating ones. By a vote of 10 to 2, the jury recommended the death penalty for the murder. The trial court adopted the jury’s recommendation, finding all four aggravating circumstances as defined in the jury instructions and no circumstances in mitigation.
The Supreme Court of Florida affirmed.
“[1] We... disagree with Sochor’s claim that his death sentence is disproportionate. [2] The trial court carefully weighed the aggravating factors against the lack of any mitigating factors and concluded that death was warranted. [3] Even after removing the aggravating factor of cold, calculated, and premeditated there still remain three aggravating factors to be weighed against no mitigating circumstances. [4] Striking one aggravating factor when there are no mitigating circumstances does not necessarily require resentencing. Robinson v. State,574 So. 2d 108 (Fla. 1991); Holton v. State,573 So. 2d 284 (Fla. 1990); James v. State,453 So. 2d 786 (Fla.), cert. denied,469 U. S. 1098 ... (1984); Francois v. State,407 So. 2d 885 (Fla. 1981), cert. denied,458 U. S. 1122 ... (1982). [5] Under the circumstances of this case, and in comparison with other death cases, we find Sochor’s sentence of death proportionate to his crime. E. g., Hitchcock v. State,578 So. 2d 685 (Fla. 1990); Tompkins[ v. State,502 So. 2d 415 (Fla. 1986), cert. denied,483 U. S. 1033 (1987)]; Doyle[ v. State,460 So. 2d 353 (Fla. 1984)].” Id., at 604.
II
In a weighing State like Florida, there is Eighth Amendment error when the sentencer weighs an “invalid” aggravating circumstance in reaching the ultimate decision to impose a death sentence. See Clemons v. Mississippi,
Florida’s capital sentencing statute allows application of the heinousness factor if “[t]he capital felony was especially heinous, atrocious, or cruel.” Fla. Stat. §921.141(5)(h) (1991). Sochor first argues that the. jury instruction on the heinousness factor was invalid in that the statutory definition is unconstitutionally vague, see Maynard v. Cartwright,
This argument faces a hurdle, however, in the rule that this Court lacks jurisdiction to review a state court’s resolution of an issue of federal law if the statе court’s decision rests on an adequate and independent state ground, see Herb v. Pitcairn,
“Sochor’s next claim, regarding alleged errors in the penalty jury instructions, likewise must fail. None of the complained-of jury instructions were objected to at trial, and, thus, they are not preserved for appeal. Vaught v. State,410 So. 2d 147 (Fla. 1982). In any event, Sochor’s claims here have no merit.10
The quoted passage indicates with requisite clarity that the rejection of Sochor’s claim was based on the alternative state ground that the claim was “not preserved for appeal,” and Sochor has said nothing in this Court to persuade us that this state ground is either not adequatе or not independent. Hence, we hold ourselves to be without authority to address Sochor’s claim based on the jury instruction about the heinousness factor.
Sochor maintains that the same Eighth Amendment violation occurred again when the trial judge, who both parties
In State v. Dixon,
“It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”283 So. 2d, at 9 .
Understanding the factor, as defined in Dixon, to apply only to a “conscienceless or pitiless crime which is unnecessarily torturous to the victim,” we held in Proffitt v. Florida,
Sochor contends, however, that the State Supreme Court’s post-Proffitt cases have not adhered to Dixon’s limitation as
But however much that may be troubling in the abstract, it need not trouble us here, for our review of Florida law indicates that the State Supreme Court has consistently held that heinousness is properly found if the defendant strangled a conscious victim. See Hitchcock v. State,
Sochor also claims that when “the sentenced weighed the coldness factor there was Eighth Amendment error that went uncorrected in the State Supreme Court.
A
First, Sochor complains of consideration of the coldness factor by the jury, the first step in his argument being that the coldness factor was “invalid” in that it was unsupported by the evidence; the second step, that the jury in the instant case “weighed” the coldness factor; and the third and last step, that in Florida the jury is at least a constituent part of “the sentencer” for Clemons purposes. The argument fails, however, for the second step is fatally flawed. Because the jury in Florida does not reveal the aggravating factors on which it relies, we cannot know whether this jury actually relied on the coldness factor. If it did nоt, there was no Eighth Amendment violation. Thus, Sochor implicitly suggests that, if the jury was allowed to rely on any of two or more independent grounds, one of which is infirm, we should presume that the resulting general verdict rested on the infirm ground and must be set aside. See Mills v. Maryland,
B
Sochor next complains that Eighth Amendment error in the trial judge’s weighing of the coldness factor was left uncured by the State Supreme Court.
We can start from some points of agreement. The parties agree that, in Florida, the trial judge is at least a constituent part of “the sentencer” for Clemons purposes, and there is, of course, no doubt that the trial judge “weighed” the coldness factor, as he said in his sentencing order. Nor is there any question that the coldness factor was “invalid” for Clemons purposes, since Parker applied the Clemons rule where a trial judge had weighed two aggravating circumstances that were invalid in the sense that the Supreme Court of Florida had found them to be unsupported by the evidence. See
2
We noted in Parker that the Supreme Court of Florida will generally not reweigh evidence independently,
The State tries to counter this deficiency by arguing that the four cases cited following thе fourth sentence of the quoted passage were harmless-error cases, citation to which was a shorthand signal that the court had reviewed this record for harmless error as well. But the citations come up short. Only one of the four cases contains language giving an explicit indication that the State Supreme Court had performed harmless-error analysis. See Holton v. State,
Although we do not mean here to require a particular formulaic indication by state courts before their review for harmless federal error will pass federal scrutiny, a plain statement that the judgment survives on such an enquiry is clearly preferable to allusions by citation. In any event, when the citations stop as far short of clarity as these do, they cannot even arguably substitute for explicit language signifying that thе State Supreme Court reviewed for harmless error.
IV
In sum, Eighth Amendment error occurred when the trial judge weighed the coldness factor. Since the Supreme Court of Florida did not explain or even “declare a belief that” this error “was harmless beyond a reasonable doubt” in that “it did not contribute to the [sentence] obtained,” Chapman, supra, at 24, the error cannot be taken as cured by the State Supreme Court’s consideration of the case. It follows that Sochor’s sentence cannot stand on the existing record of appellate review. We vacate the judgment of the
It is so ordered.
Notes
“10. .... We reject without discussion Sochor’s ... claims ... that the instructions as to the aggravating factors of heinous, atrocious, or cruel and cold, calculated, and premeditated were improper ....”
Justice Stevens’s dissenting conclusion that we do have jurisdiction, post, at 547-549, is mistaken. First, the suggestion'that Soehor’s pretrial motion objecting to the vagueness of Florida’s heinousness factor preserved his objection to the heinousness instruction to the jury, post, at 547, ignores the settled rule of Florida procedure that, in order to preserve an objection, a party must object after the trial judge has instructed the jury. See, e. g., Harris v. State,
Second, Justice Stevens states that “the Florida Supreme Court, far from providing us with a plain statement that petitioner’s claim was procedurally barred, has merely said that the claim was not preserved for appeal, and has given even further indication that petitioner’s claim was not procedurally barred by proceeding to the merits, albeit in the alternative.” Post, at 547-548 (citations and internal quotation marks omitted). It is difficult to comprehend why the State Supreme Court’s statement that “the claim was not preserved for appeal” would not amount to “a plain statement that petitioner’s claim was procedurally barred,” especially since there is no reason to believe that error of the kind Sochor alleged cannot be waived under Florida law, see this note, infra. It is even more difficult to comprehend why the fact that the State Supreme Court rested upon this state ground merely in the alternative would somehow save our jurisdiction. See supra, at 533.
Third, Justice Stevens suggests that, in holding Sochor’s claim waived, the Supreme Court of Florida implied that the claim did not implicate “fundamental error,” аnd that this in turn implied a rejection of So-chor’s claim of “error,” presumably because all federal constitutional error (or at least the kind claimed by Sochor) would automatically be “fundamental.” Post, at 548-549. To say that this is “the most reasonable explanation,” Michigan v. Long,
Finally, Justice Stevens’s suggestion that the State waived its independent-state-ground defense, post, at 548-549, forgets that this defense goes to our jurisdiction and therefore cannot be waived. See supra, at 533.
Concurrence Opinion
with whom Justice Whitе and Justice Thomas join, concurring in part and dissenting in part.
I join in all that the Court has to say in rejecting Sochor’s claim that the application of Florida’s “heinousness” factor in
When a reviewing court invalidates one or more of the aggravating factors upon which the sentencer relied in imposing a death sentence, the court may uphold the sentence by reweighing the remaining evidence or by conducting harmless-error analysis. Clemons v. Mississippi,
After finding that the trial judge erred in relying on the “coldness” factor in determining Sochor’s sentence, the Supreme Court of Florida stated:
“The trial court carefully weighed the aggravating factors against the lack of any mitigating factors and concluded that death was warranted. Even after removing the aggravating factor of cold, сalculated, and premeditated there still remain three aggravating factors to be weighed against no mitigating circumstances. Strikingone aggravating factor when there are no mitigating circumstances does not necessarily require resentencing. Robinson v. State, 574 So. 2d 108 (Fla. 1991); Holton v. State,573 So. 2d 284 (Fla. 1990); James v. State,453 So. 2d 786 (Fla.), cert. denied,469 U. S. 1098 ... (1984); Francois v. State,407 So. 2d 885 (Fla. 1981), cert. denied,458 U. S. 1122 ... (1982).”580 So. 2d 595 , 604 (1991).
The Court now holds that this passage fails to indicate that the error in this case was viewed as harmless. It is true that the passage does not mention the words “harmless error.” But we have never held that a court must necessarily recite those words in determining whether an error had an effect on a certain result. In deciding whether the Supreme Court of Florida conducted adequate harmless-error analysis in this case, our focus should not be solely on the particular words and phrases it used to convey its thoughts. Whatever words it used, if they show that it concluded beyond a reasonable doubt that elimination of the “coldness” aggravating factor would have made no difference to Sochor’s sentence, then it conducted adequate harmless-error analysis. See Parker v. Dugger,
I am convinced by the passage quoted above that the Supreme Court of Florida believed, beyond a reasonable doubt, that the elimination of the “coldness” factor would have made no difference at all in this case. A review of the aggravating and mitigating evidence presented in this case demonstrates why. In making his sentencing determination, the trial judge found four aggravating circumstances, including the “coldness” aggravator. He found absolutely no mitigating evidence. After weighing the four aggravating circumstances against zero mitigating circumstances, the trial judge imposed the death penalty. The Supreme Court of Florida later found the “coldness” aggravating circumstance invalid. It observed, however, that three valid ag-gravators were left to be balanced against the complete lack of mitigating evidence. On that basis, the court concluded
In my mind, it is no stretch to conclude that the court saw this case for what it is — a paradigmatic example оf the situation where the invalidation of an aggravator makes absolutely no difference in the sentencing calculus. We have previously observed that the invalidation of an aggravating circumstance results in the removal of a “thumb . . . from death’s side of the scale.” Stringer v. Black,
Concurrence Opinion
with whom Justice Blackmun joins, concurring in part and dissenting in part.
We granted certiorari to consider two questions.
I
There is no dispute that the instruction prescribing the so-called heinous, atrocious, or cruel aggravating circumstance (or heinousness factor, according to the Court’s nomenclature)
HH 1 — I
Petitioner s failure to object to the instruction at trial did not deprive the Florida Supreme Court or this Court of the power to correct the obvious constitutional error. First, petitioner did object to the vagueness of this aggravating circumstance in a Motion To Declare Section 921.141, Florida Statutes Unconstitutional Re: Aggravating and Mitigating Circumstances at the start of trial, see App. 8, 10;
HH HH HH
We should reject unequivocally Florida’s submission that erroneous jury instructions at the penalty phase of a capital case are harmless because the trial judge is the actual sen-tencer and the jury’s role-is purely advisory. That submission is unsound as a matter of law, see, e. g., Riley v. Wainwright,
As a matter of law, the jury plays an essential role in the Florida sentencing scheme. Under Tedder v. State, 322
Similarly, a jury’s recommendation of a death sentence must also be given great weight.
As a matter of fact, the jury sentence is the sentence that is usually imposed by the Florida Supreme Court. The State has attached an appendix to its brief, see App. to Brief for Respondent A1-A70, setting forth data concerning 469 capital cases that were reviewed by the Florida Supreme Court between 1980 and 1991. In 341 of those cases (73%), the jury recommended the death penalty; in none of those cases did the trial judge impose a lesser sentence. In 91 cases (19%), the jury recommended a life sentence; in all but one of those cases, the trial judge overrode the jury’s recommended life sentence and imposed a death sentence. In 69 of those overrides (77%), however, the Florida Supreme Court vacated the trial judge’s sentence and either imposed a life sentence itself or remanded for a new sentencing hearing.
When a jury has been mistakenly instructed on the heinous, atrocious, or cruel aggravating circumstance, the Florida Supreme Court, acknowledging the important role that the jury plays in the sentencing scheme, has held that the error was reversible. For example, in Jones v. State,
The harmless-error inquiry to be conducted by the Florida Supreme Court on remand should, therefore, encompass the erroneous jury instruction on the heinousness faсtor and the error in submitting an instruction on the cold, calculated, and premeditated aggravating circumstance to the jury when the evidence did not support such an instruction, as well as the error committed by the trial judge in relying on that factor.
For the reasons given above, I concur in Parts I, III-B, and IV, and respectfully disagree with Parts II-A, II-B, and III-A.
Petitioner included four questions in his petition for writ of certiorari; however, the Court limited its grant to a consideration of questions two and four, which petitioner framed as follows:
“2. Did the Florida Supreme Court’s review of petitioner’s death sentence violate the Eighth and Fourteenth Amendments where that court upheld the sentence even though the trial court had instructed the jury on, and had applied, an improper aggravating circumstance, where the Florida Supreme Court did not reweigh the evidence or conduct a harmless error analysis as to the effect of improper use of the circumstance on the jury’s penalty verdict?”
“4. Did the application of Florida’s ‘especially heinous, atrocious, or cruel’ aggravating circumstance at bar violate the Eighth and Fourteenth Amendments?” Pet. for Cert. ii.
The trial judge gave the following instruction with respect to the heinous, atrocious, or cruel aggravating circumstance: “The aggravating circumstances that you may consider are limited to any of the following that are established by the evidence. ... [N]umber three, the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel.” App. 326-327.
See Walton v. Arizona,
In State v. Dixon,
In particular, petitioner alleged:
“Almost any capital felony would appear especially cruel, heinous and atrocious to the layman, particularly any felony murder. Examination of the widespread application of this circumstance indicates that reasonable and consistent application is impossible. This standard is vague and over-broad and provides no basis for distinguishing one factual situation from another. Godfrey v. Georgia,446 U. S. 420 (1980).” App. 10.
See, e. g., Ray v. State,
The Florida Supreme Court’s statement that none of the alleged errors in the jury instructions had been “preserved for appeal,”
The Court clearly misconstrues my point about fundamental error if it understands me to be saying that all errors concerning an improper instruction on the heinous, atrocious, or cruel aggravating circumstance “would automatically be ‘fundamental.’ ” Ante, at 535, n. Quite simply, my point is not that such error necessarily constitutes fundamental error, but rather, that such error can be the subject of fundamental error review. In other words, the Florida Supreme Court is not without power, even when the defendant has failed to raise an objection at trial, to consider whether such error constitutes fundamental error. Although the Florida Supreme Court may not necessarily find fundamental error in the particular instance, it is, nevertheless, willing and able to consider whether fundamental error has occurred. See, e. g., Walton v. State,
See Oklahoma City v. Tuttle,
Contrary to the Court’s suggestion that I have forgotten that the “defense” is jurisdictional, see ante, at 635, n., I believe the Court has forgotten that we have ample power to review a state court’s disposition of a federal question on its merits. If the Florida Supreme Court has jurisdiction to consider petitioner’s claim, as I believe it does when it engages in fundamental error review and reaches the merits of the claim, then this Court also has jurisdiction to reach the merits.
See, e. g., Thompson v. State,
As the Eleventh Circuit observed about the Florida Supreme Court: “That the court meant what it said in Tedder is amply demonstrated by the dozens of cases in which it has applied the Tedder standard to reverse a trial judge’s attempt to override a jury recommendation of life. See, e. g., Wasko v. State,
Smith v. State,
The Florida courts have long recognized the integral role that the jury plays in their capital sentencing scheme. See, e. g., Messer v. State,
In 37 out of the 469 cases, there was no jury recommendation either because the defendant had waived the right to -a jury trial or had offered a plea, or because the jury selection or trial had to be redone.
As the Eleventh Circuit observed:
“[T]he Florida Supreme Court will vacate the [death] sentence and order resentencing before a new jury if it concludes that the proceedings before the original jury were tainted by error. ... In those cases, the supreme court frequently focuses on how the error may have affected the jury’s recommendation. . . . Such a focus would be illogical unless the supremecourt began with the premise that the jury’s recommendation must be given significant weight by the trial judge. Once that premise is established, a focus on how the error may have affected the jury’s recommendation makes sense: if the jury’s recommendation is tainted, then the trial court’s sentencing decision, whiсh took into account that recommendation, is also tainted.” Mann v. Dugger, 844 F. 2d, at 1452-1453 (footnote omitted).
As the court explained in Riley v. Wainwright,
Concurrence Opinion
concurring in part and dissenting in part.
I join the Court’s opinion insofar as it rejects petitioner’s challenge to the heinous, atrocious, and cruel aggravating factor. I dissent, however, from its holding that the death sentence in this case is unconstitutional because the Florida Supreme Court failed to find “harmless error” after having invalidated the trial judge’s “coldness” finding.
Even without that finding, three unquestionably valid aggravating factors remained, so that the death sentence com
Concurrence Opinion
concurring.
I join the Court’s opinion but write separately to set forth my understanding that the Court does not hold that an appellate court can fulfill its obligations of meaningful review by simply reciting the formula for harmless error. In Chapman v. California,