*1 SOCHOR FLORIDA No. 91-5843. Argued 2, 1992 March 8, 1992 June Decided *2 Souter, J., opinion Court, delivered the Part I of which was unanimous, joined Part II by Rehnquist, J., White, of which was C. and O’Connor, Scalia, Kennedy, Thomas, JJ., and Part III-A of which was joined by Rehnquist, J., White, O’Connor, Kennedy, C. and and Thomas, JJ., joined Part III-B-1 by Rehnquist, J., of which was C. and White, Blackmun, Stevens, O’Connor, Kennedy, Thomas, JJ., and and joined by Parts III-B-2 and IV of Blackmun, Stevens, which were O’Connor, Kennedy, J., O’Connor, and JJ. concurring opinion, filed a post, p. Rehnquist, J., 541. opinion C. concurring part filed in and dissenting part, in in post, p. 541. Thomas, JJ., joined, which White and Stevens, J., opinion filed an concurring part in dissenting part, and in Blackmun, J., Scalia, J., joined, post, in which p. 545. opinion filed an concurring part post, p. 553. dissenting part,
Gary argued petitioner. Caldwell cause With him on Jorandby the briefs were Richard L. and Eric Cumfer.
Carolyn Attorney M. Snurkowski, Assistant General argued respondent. Florida, the cause for With her on the Attorney brief were Robert A. Butterworth, General, and Attorney Terenzio, Celia A. Assistant General.* opinion delivered the of the Court. Justice Souter Under guilty after law, cap- defendant is found *3 separate jury proceeding ital a murder, is held as the first of steps deciding two whether his sentence be should life imprisonment §921.141(1) (1991). or death. Fla. Stat. At aggravating mitigating the close of such and evidence as the prosecution may and the judge defense introduce, the trial charges jurors weigh aggravating whatever and miti- gating they may circumstances or factors find, and to reach advisory by §921.141(2). majority verdict vote. The jury report specificfindings does not aggravating of and miti- gating circumstances, but sentencing step, if, at the second judge upon decides death, he must issue a written state- §921.141(3). ment of the circumstances he finds. A death subject sentence by Supreme then to automatic review the §921.141(4). Court of Florida. petitioner
A Florida trial court sentenced to death after jury a Supreme so recommended, and the Court of Florida petitioner affirmed. We must determine whether, as claims, weighed the sеntencer in his case either of two factors that he claims were invalid, and if so, whether State holding Court cured the error it harmless. * Steven M. Goldstein filed a brief Lawyers for the Volunteer Resource Florida, Inc., Center of as amicus curiae urging reversal. Michael Mello filed a brief for Capital Representative Collateral of the State of Florida as amicus curiae. yes question
We answer to the first second, and no to the judgment and therefore vacate the Court of Florida and remand.
I petitioner Year’s Eve Dennis On New Sochor met a County, woman in a bar in Broward Florida. Sochor tried rape together, they her after had left and her resistance angered point choking him to the her to He was death. first-degree kidnaping indicted for and and, murder after a jury guilty trial, was found of each offense. penalty hearing, aggravating mitigating
At the and evi- jury possi- offered, dence was and the was instructed on the bility finding aggravating circumstances, four twо of which were that
“the crime for which the is to defendant be sentenced especially [that] wicked, cruel, atrocious or and evil, the crime for which the defendant is to be sentenced premeditated was committed in cold, calculated and any pretense legal justifi- without manner, of moral or App. cation.” 326-327. explained then to the that it could find certain
statutory any nonstatutory mitigating circumstances, weighed against any aggravating which were to be ones. *4 By jury pen- a vote of 10 to recommended the death alty adopted jury’s for the murder. The trial court rec- finding aggravating ommendation, all four circumstances as jury defined in the instructions and no circumstances in mitigation.
The Court of Florida affirmed. 580 2d 595 So. (1991). vague- It declined to reverse for unconstitutional judge’s ness in the trial instruction that the could find aggravating as an factor that “the crime for which the especially defendant is to be sentenced was wicked, evil, (hereinafter, brevity, atrocious or cruel” for the heinousness factor, after the statute’s words “heinous, atrocious, or §921.141(5)(h)(1991)). cruel,” Fla. Stat. The court held the issue object waived failure to lacking and the claim merit any event. 580 2d, So. at 602-603, and n. 10. The court rejected also Sochor’s claim of sup insufficient evidence to port judge’s finding of the heinousness citing factor, evidence of the anxiety victim’s extreme fear before she died. State agree Court did with Sochor, however, that the support evidence failed to judge’s finding that “the crime . . . was committed in a cold, calcu premeditated lated, and any pretense manner without of (hereinafter legal justification” moral or factor), the coldness holding require this “heightened” factor to degree pre of meditation not shown in this case. Id., at 603. The State Supreme Court affirmed the death sentence notwithstanding saying the error, that:
“[1]
disagree
We...
with Sochor’s claim that his death
disproportionate.
sentence is
[2] Thе trial
care
court
fully weighed
aggravating
against
factors
the lack
any mitigating
of
factors and concluded that death was
warranted.
[3]
Even after
removing
aggravating
factor
cold,
premeditated
calculated, and
there still
remain
three
weighed against
factors to be
mitigating
no
[4] Striking
aggra
circumstances.
one
vating factor when
mitigating
there are no
circum
stances
necessarily
does
require
resentencing.
(Fla.
State,
Robinson v.
1991);
2d
So.
Holton v.
(Fla.
1990);
573 So. 2d James v.
(Fla.),
2d
So.
cert.
(1984);
denied, 469 U. S. 1098 .. .
(Fla.
Francois v.
1981),
State, 407 So. 2d 885
cert. denied,
458 U.
S. 1122 ...
[5]
Under the circumstances
comparison
this case, and in
with other death cases,
we find Sochor’s sentence of
proportionate
death
to his
g.,
(Fla.
crime. E. Hitchcock v. State, 578
2d
So.
1990); Tompkins[
(Fla.
v. State, 502
1986),
So. 2d 415
cert.
(1987)];
denied,
Sochor (1) following granted limited to the two: review tions. We factor] [heinousness application violate of Florida’s “Did the (2) Eighth “Did the Amendments?” аnd and Fourteenth petitioner’s death sen review of Court’s Eighth and Fourteenth Amendments where tence violate the though upheld the trial court the sentence even that court improper ag applied, and had on, had instructed the that] gravating [in the Florida circumstance, reweigh a harmless error the evidence or conduct did not improper analysis use of the circumstance as to the effect of jury’s penalty ii; for Cert. see 502 on verdict?” Pet. (1991). U. S. 967
II
Eighth
weighing
Amend
Florida,
like
there
In a
State
aggra
weighs an “invalid”
ment error when the sentencer
vating
reaching
decision to im
the ultimate
circumstance
Mississippi,
pose
v.
a death sentence. See Clemons
(1990).
aggravating
Employing
fac
an invalid
738, 752
U. S.
possibility
weighing process
in the
“creates
...
tor
(1992),by
Stringer Black,
randomness,”
503 U. S.
[on]
placing
id., scale,”
“thumb
death’s side of the
“creating]
treating]
[of]
risk
the defendant as more
thus
deserving
penalty,” id.,
death
at 235. Even when
merely affirming
aggravating
exist,
valid
factors
a sen
other
weighing
aggravating
tence reached
an invalid
factor de
prives
treatment
a defendant of “the individualized
reweighing
mitigating
actual
of the mix of
would result from
aggravating
supra,
Clemons,
factors and
circumstances.”
(1978),
(citing
Ohio,
and Ed
at 752
Lockett v.
A Florida’s capital statute sentencing allows application the heinousness factor if capital “[t]he felony was espe heinous, cially atrocious, or §921.141(5)(h) cruel.” Fla. Stat. (1991). Sochor first argues the. that jury instruction on the heinousness factor was invalid in that the statutory defini Maynard Cartwright, tion is see unconstitutionally vague, v. Godfrey Georgia,
This
argument
faces
hurdle, however,
in the rule that
this Court lacks jurisdiction to review a state court’s resolu
tion of an issue of federal
law the
if
state court’s decision
rests on an adequate and independent state
Herb
see
ground,
v. Pitcairn, 324 U.
S.
125-126 (1945), as it will if the
state court’s opinion “indicatеs
clearly
expressly”
the state ground is an
Michigan
alternative
see
holding,
Long, 463 U.
1041 (1983); see also Harris
S.
Reed,
Corp.
claim factor was unconstitutional: errors in the claim, regarding alleged
“Sochor’s next must fail. None of instructions, likewise penalty jury were objected instructions the complained-of are not trial, and, thus, appeal. they preserved *7 1982). (Fla. 2d 147 State, any v. 410 So. Vaught here have no merit.10 event, Sochor’s claims ... claims ... that reject without discussion Sochor’s “10. .... We heinous, atrocious, of to the factors the instructions as cold, calculated, premeditated improper were ....” and or cruel and 602-603, at and n. 10. 2d, 580 So. with that the clarity indicates quoted requisite passage on alternative state claim was based
rejection Sochor’s for and that the claim was “not preserved appeal,” ground that in this Court to us persuade Sochor has said nothing is either not or not independent. this state ground adequate to address we hold ourselves to be without Hence, authority hei claim on the instruction about Sochor’s based nousness factor.* * dissenting jurisdiction, conclusion that we do have Stevens’s Justice 547-549, First, pretrial
post,
suggestion'that
Soehor’s
at
is mistaken.
vagueness
pre
Florida’s heinousness factor
objecting
motion
to the
jury, post,
objection to the heinousness instruction to the
served his
that,
547,
procedure
preserve
in order to
ignores the settled rule of Florida
objection,
object
after the trial
has instructed the
party
must
(Fla.
1983),
See,
g.,
State,
cert. de
jury.
e. Harris v.
438 So. 2d
(Fla.
(1984);
State,
1348, 1350
nied,
Vazquez
App.
v.
518 So. 2d
B
Sochor maintains that the same Eighth Amendment viola-
tion occurred
when
again
who
judge,
both parties
1389, 1390 (Fla.),
denied,
(1983);
cert.
factors would instructional involving аnother factor is not “fundamental.” (Fla. See Occhicone v. 1990), 570 So. 2d denied, cert. 500 U. S.
Finally,
suggestion
Justice
Stevens’s
the State waived its
defense,
independent-state-ground
post,
548-549, forgets
at
that this de-
goes
jurisdiction
fense
to our
and therefore cannot be
supra,
waived. See
at 533.
part
sentencer,”
“the
of
agree
constituent
at least a
is
sure,
To be
Sochor
weighed
factor himself.
the heinousness
Arizona,
definition extremely interpretation means heinous “It is our outrage- shockingly means atrocious evil; that wicked or designed to ously cruel means vile; and, that wicked degree pain to, indifference high with utter inflict a suffering is enjoyment of others. What of, or even capital crimes where those included are intended to be felony accompa- capital the actual commission apart the crime acts as to set additional nied such capital or felonies—the conscienceless from the norm unnecessarily to the pitiless torturous is crime which 2d, 9. victim.” So. only apply
Understanding Dixon, factor, as defined unnecessarily pitiless crime which or a “conscienceless Florida, we held victim,” to the torturous Proffitt *9 guidance. (1976), adequate had that the sentencer 242 (opinion Stewart, Powell, and Ste- id., 255-256 of at See JJ.). vens, Supreme Court’s however, that the State сontends, Sochor limitation as to Dixon’s post-Proffitt have not adhered cases
637
stated in Proffitt, but instead evince inconsistent and over-
broad constructions that leave a trial court without sufficient
guidance. And we
well
may
with
agree
him that
the Su
preme
Florida has not confined its discussions on
to the Dixon
the matter
we
approved in Proffitt,
language
has
but
on occasion continued to invoke the entire Dixon
statement quoted above, perhaps
thinking
ap
Proffitt
g.,
proved it all. See, e.
Porter
State,
v.
But however much that may be
troubling
the abstract,
it need not
us
trouble
here, for our review of Florida law
indicates that the State Supreme Court has
held
consistently
that heinousness is
found if the
properly
defendant strangled
a conscious victim. See Hitchcock State,
v.
III Eighth was Amendment factor there coldness in the Court. uncorrected State went A complains coldness consideration of the of First, Sochor argument being step by jury, in his the first factor unsupported in that it was was “invalid” the coldness factor step, jury in the instant by that the the second evidence; “weighed” the third and last factor; and the coldness case part jury a constituent step, is at least that in Florida the argumеnt purposes. fails, The for Clemons “the sentencer” step fatally Because is flawed. however, for the second on jury factors reveal the does not in Florida jury actually this cannot know whether relies, it we which no not, If it there was factor. did relied on the coldness implicitly sug- Eighth Thus, violation. Sochor Amendment rely any jury on of two or gests allowed to if the that, independent grounds, we should infirm, one of which is more resulting general in- presume rested on the verdict that the Maryland, ground set See Mills v. firm and must be aside. (1988); Stromberg cf. California, 376-377 486 U. S. (1931). held however, this we Term, Just 283 U. S. process that a trial court instructed no of due it was violation by legal supported jury theories, one a on two different States, United the other not. See evidence, Griffin unlikely although jury a reasoned that U. S. 46 We likely disregard theory to law, it is indeed flawed by simply unsupported disregard option Id., evidence. reasoning here, and for different We see no occasion 59-60. accordingly presume error. decline B complains Eighth error in Amendment next Sochor judge’s weighing left un- factor was coldness cured Court. State points We can agreement. start from parties some agree that, in Florida, the trial is at least a constituent *11 part purposes, of “the sentencer” for Clemons and there is, judge “weighed” course, no doubt that the trial the cold- ness sentencing factor, as said he in his order. Nor is there any question that the coldness factor “invalid” for Clem- purposes, applied ons since Parker rule Clemons where judge weighed a trial had two circumstances that were Supreme invalid in the sense that the Court of unsupported Florida had found them to be the evidence. See 498 U. Eighth S., It 311. follows Amendment error did occur weighed when the trial the coldness factor the instant adequacy case. What is issue is the Supreme of the State Court’s effort to cure under the rule in Clemons, announced that a sentence so tainted requires appellate reweighing or review for harmlessness.
We noted in
Supreme
Parker that the
generally
reweigh
will
independently,
evidence
498 S.,U.
curiam),
(citing
at 319
Hudson v.
(per
State,
This, however, far apparent. only from Not does the opinion State Court’s fail so much toas mention “harmless error,’’ see Yates Evatt, (1991), quoted but the sentences numbered one and five ex pressly quite enquiry rеfer to different whether Sochor’s proportional. sentence was deficiency by
The arguing State tries to counter this following the four cases cited the fourth sentence of the quoted passage were harmless-error cases, citation to which signal was a shorthand that the court had reviewed this rec- ord for up harmless error as well. But the citations come Only language short. one giving of the four cases contains explicit per- indication that the State Court had analysis. formed harmless-error See Holton (1990) (“We So. 2d the error was harmless find be- doubt”). yond a simply three not, reasonable other do *12 ambiguity. and the result is
Although require particular we do not mean here to a for- by mulaic indication state courts before their review for pass scrutiny, harmless plain federal error will federal judgment statement enquiry that the survives on such an clearly preferable by any to allusions citation. In event, stop when clarity the citations as far short of as do, thеse they arguably explicit cannot even language substitute for signifying Supreme that the State Court reviewed for harm- less error.
IV Eighth In sum, Amendment error when occurred the judge weighed the coldness factor. Since the explain Court of Florida did not or even “declare a belief beyond that” this error “was harmless a reasonable doubt” in that “it [sentence] did not contribute to the obtained,” Chapman, supra, at the error cannot be taken as cured by the State Court’s consideration of the case. It follows that Sochor’s sentence existing cannot on stand appellate record of judgment review. We vacate the Supreme Court of Florida and remand the case for proceed- ings inconsistent with this opinion.
It is so ordered. Justice O’Connor, concurring.
I join Court’s opinion but write to set forth separately my understanding does not hold that an ap- court pellate can fulfill its obligations meaningful review Chap- simply reciting formula for harmless In error. man California, U. S. 18 (1967), we held that before а federal constitutional error can held harmless, be the review- court must ing find “beyond a reasonable doubt complained did not contribute to the verdict ob- Id., tained.” at 24. This is a justifiably high standard, and while it can be met without uttering words “harm- magic see ante, at 540, the reverse is not true. An error,” less court’s appellate bald assertion error of constitutional was “harmless” cannot dimensions substitute for a principled explanation of how the court reached that conclusion. Mississippi, Clemons 494 U. 738 (1990), S. we example, did not hesitate to remand a case for “a detailed explanation based on the record” when the lower court failed to under- take an explicit analysis its supporting one- “cryptic,” Id., sentence conclusion of harmless error. I 753. agree with the Court that the Florida Supreme Court’s discussion of the proportionality of petitioner’s sentence is not an ac- *13 ceptable for ante, at substitute error harmless see аnalysis, and I 539-540, do not understand the Court to say the mere addition of the words “harmless error” would have suf- ficed to satisfy the dictates of Clemons.
Chief Justice Rehnquist, with whom Justice White and Justice Thomas join, in concurring part and dissenting in part.
I in all join the Court has say Sochor’s rejecting claim that the of Florida’s application “heinousness” factor in rights. agree I also his constitutional
this case violated Eighth majority error occurred Amendment with the weighed judge the invalid “coldness” factor trial when the join Accordingly, I imposing Parts death sentence. Sochor’s opinion. I dissent III-B-1 of the Court’s I, II, III-A, and opinion, I however, III-B-2 and IV from Parts of Florida cured this sen- the Court believe that by finding tencing I thus affirm it harmless. would uphold judgment sentence. and below reviewing or more of the invalidates one court When upon in im- aggravating the sentencer relied which factors may uphold posing the sentence sentence, the court a death by conducting remaining by reweighing evidence or analysis. Mississippi, 494 U. S. Clemons v. harmless-error (1990); majority observes, the Court As the aggra- independently reweigh practice not in of Florida does vating mitigating and it did not do so in this evidence, and sen- Ante, at In order sustain Sochor’s case. 539-540. any error thus had to find harmless. tence, the court beyond doubt that it had to find a reasonable words, other imposed judge have the death sentence would still perform- “coldness” factor when if he had not considered the required by ing weighing Florida law. Clem- function Chapman supra, Mississippi, 753; v. California, ons v. (1967). It seems clear to me that the court certainly the conclusion is conclusion, reached this and that justified by the facts of this case. relying finding erred in on the
After that the determining sentence, factor in Sochor’s the Su- “coldness” preme of Florida stated: carefully weighed aggravating fac-
“The trial court against any mitigating the lack of factors and con- tors removing Even after cluded that death warranted. premedi- aggravating cold, calculated, factor of tated there still remain three factors to be mitigating Striking weighed against no circumstances.
643 mitigating aggravating factor when there are no cir one necessarily require resentencing. cumstances does not (Fla. 1991); State, Robinson v. 574 2d 108 Holton v. So. (Fla. 1990); State, 2d 284 573 So. James (Fla.), (1984); denied, 2d 786 cert. 469 U. S. . . . So. (Fla. 1981), denied, Francois v. 2d 885 cert. So. (1982).” (1991). 2d U. S. . . . 580 So. passage The Court now holds that this fails to indicate that the error in this case as was viewed harmless. It is true passage does not mention words “harmless But we have never held a court must error.” ily necessar- determining recite those words whether an error had deciding on a certain an effect result. In whether the Su- preme adequate of Court Florida conducted harmless-error analysis solely case, in this our focus should not be on the particular phrases convey thoughts. words and it used to its they used, Whatever words it if show that it concluded beyond a reasonable doubt that elimination of the “cold- aggravаting ness” factor would made have no difference to adequate Sochor’s then it sentence, conducted harmless-error analysis. Dugger, See Parker v. passage quoted
I am convinced above that the Su- preme beyond of believed, Court a reasonable doubt, the elimination of the “coldness” factor would have ag- made no difference at all in this A case. review the gravating mitigating presented evidence in this case why. making sentencing demonstrates his determina- aggravating tion, found four circumstances, including aggravator. absolutely the “coldness” He found no mitigating weighing aggravating After the four evidence. against mitigating circumstances zero circumstances, judge imposed penalty. the death of Florida later found the “coldness” circum- ag- stance invalid. It observed, however, that three valid gravators against complete were left to be balanced lack mitigating basis, evidence. On that the court concluded *15 resentencing unnecessary. reaching After the court cited four cases which it had invali
conclusion, aggravating upheld dated factors but had the death sen having aggravators of those tences, found that the inclusion weighing process. the made no difference to One the explicit cited in fact made mention of harmless-error cases (1990)(“Under analysis. 284, 293 Holton 573 So. 2d say any case, we cannot there the circumstances of this the trial court would have reasonable likelihood concluded aggravating that the valid circumstances were out three mitigating weighed by find the factors. We the error was doubt”) (citation omitted). beyond harmless a reasonable supra, See at 542-543. my to conclude that mind, it is no stretch the court example paradigmatic
saw this case for what it is—a aggravator the of an makes ab- situation where invalidation solutely sentencing in the We have no difference calculus. previously observed that the invalidation оf an removal of a “thumb from circumstance results the . . . Stringer Black, 503 death’s side of the scale.” (1992). Precisely require appellate reason, for this we reweigh perform to either the evidence or harmless- courts analysis they if seek to affirm a death sentence after invalidating aggravator. this, however, In a case such as where there is not so much as a thumbnail on the scale in mitigation, require appellate I courts to favor of would not any particular form words to demonstrate that adhere to If the in this case had elimi- which is evident. aggravator weighing process, nated the “coldness” from aggravators against and had balanced the three valid mitigating mitigat- complete evidence, absence of absent outweigh aggra- ing still evidence would have failed vating still been evidence, and the sentence would have Although cursorily, I am that the death. it did so convinced the invalid of Florida found the inclusion of beyond factor harmless a reasonable doubt. “coldness” It seems that the omission of the words “harmless error” opinion from the below is the root of this Court’s dissatisfac- tion with it. In all likelihood, Court of Florida reimpose will Sochor’s death perhaps sentence on remand, appending using phrase sentence the talismanic “harmless error.” Form correspond will then to substance, but this marginal benefit justify does supervise our effort to opinion writing of state courts. I would therefore affirm the judgment below.
Justice Stevens, with whom Justice Blackmun joins, in concurring part and dissenting part. granted
We questions.1 certiorari to consider two The question Court answers the first in Parts III-B and IV of its opinion, see ante, join. at 538-540, which I I do not, how- agree ever, with the plain Court’s treatment of the error that judge when occurred jury pen- instructed the at the alty phase of the trial. See ante, at 532-534. ar- Florida gues that this error was harmless because death sen- imposed by tence was jury. rather than the today Court argument does not address this because it con- petitioner cludes that by failing object waived the to disagree the instruction. I with this Court its effort 1Petitioner questions included four petition in his writ of certiorari; however, the Court grant limited its to a questions consideration of two four, and petitioner which framed as follows: “2. Did the Supreme Florida petitioner’s Court’s review of death sen- tence Eighth violate the and Fourteenth Amendments where that court upheld the sentence though even the trial court had instructed the on, and applied, had an improper aggravating circumstance, where the Florida Court did reweigh the evidence or conduct a harm- analysis less error as to the effect of improper use of the circumstance on jury’s penalty verdict?” “4. Did application of Florida’s ‘especially heinous, atrocious, or cruel’ aggravating circumstance at bar violate the Eighth and Fourteenth Amendments?” Pet. for Cert. ii. in its and with the
to avoid the issue appraisal of the error.
I prescribing dispute the so- instruction There no that the is aggravating circumstance cruel heinous, atrocious, or called (or according nomencla- to the Court’s factor, heinousness ture)2 unconstitutionally vague decision in under our (1988).3 Maynard Cartwright, In Cart- 486 U. S. something say “[t]o wright, explained that that the Court ju- merely suggests ‘especially the individual heinous’ just more than ‘hei- murder is that the rors should determine ordinary person could means, nous,’ whatever taking unjustified, honestly every intentional believe ” (citation ‘especially omit- Id., at 364 human life is heinous.’ ted). limiting may adopt Although construc- court a state sentencing aggravating capital circumstance vague tion of a meaningful guidance id., see give sentencer, to the (1990);Lewis v. Arizona, 497 U. S. 365; Walton (1990);Godfrey Georgia, 446 778-779 U. S. Jeffers, (1980) appellate (plurality opinion), or a state 420, 428 *17 aggravating limiting might apply of the definition court Cartwright, presented, 486 see facts circumstance to the at S., 497 U. S., 653; at 364; Walton, Jeffers, at 497 U. S., U. Supreme Godfrey, the Florida 429, at 778-779; S., 446 U. 2 respect with to the hei following instruction judge gave The trial the aggravating “The cir nous, atrocious, aggravating circumstance: or cruel following that any you may are limited cumstances that consider three, crime for which [N]umber the evidence. ... are established wicked, evil, atrocious or especially is to be sentenced was defendant App. cruel.” 326-327. 3 (1990) (“It Arizona, enough 639, See Walton v. 653 is not 497 U. S. that is aggravating circumstance in the bare terms of instruct Georgia, 420, Godfrey v. face”); 446 unconstitutionally vague on its (1980) (“There words, [‘outrageously or nothing in these few 428 alone, inhuman,’] implies any wantonly vile, standing horrible and arbitrary capricious infliction of the death and inherent restraint on sentence”). Court has failed to do so In Florida, here. Proffitt (1976), approved 242, U. limiting S. 255-256 this Court adopted by Supreme construction the Florida Court for the guidance given heinousness factor;4 however, the in State v. (Fla. 1973), certainly provided Dixon, 283 2d So. was not given by the bare bones of the instruction thе trial court supra. in this case. See n.
1—I HH
object
Petitioner s failure to
to the instruction at trial did
deprive
Supreme
the Florida
Court or this Court of the
power to correct the obvious constitutional
First,
error.
petitioner
object
vagueness
did
to the
of this
circumstance in a Motion To Declare Section 921.141,Florida
Aggravating
Statutes
Mitigating
Unconstitutional Re:
Circumstances
App.
at the start of trial, see
8, 10;5however,
that motion was denied. See 1
Second,
Tr. 9.
the Florida
though noting
petitioner
Court,
had failed to
contemporaneous objection
make a
to the instruction at the
time
trial,
nevertheless went on to reach the merits of
petitioner’s
claim. See 580
2d 595,
So.
Thus,
providing
Court, far from
us with a
plain
petitioner’s
procedurally
statement
claim Michigan
Long,
(1983),
barred, see
463 U.
S.
merely
preserved
has
said
ap
that the claim was “not
peal,”
given
2d,
So.
and has
even further indica-
Dixon,
In State (Fla.
1973),
283 So.
denied,
2d 1
cert.
tion that
claim
petitioner’s
was not
barred
procedurally
by
to the
albeit
proceeding
merits,
Third,
alternative.
and most
the state court
review a
important,
fundamen-
may
tal error
a
failure to make a
despite
party’s
contemporaneous
in the
objection
court,6
and it
has the
unquestionably
power
review this error evеn
the error
though
not
may
have been
for
properly preserved
As the
appeal.7
Court
Supreme
error
explained, “[fundamental
has been de-
fined as ‘error which
to the
goes
foundation of the case or
”
to the merits
goes
of the cause of action,’
and
it
although
“
”
is to be applied
‘very
it
guardedly,’
nevertheless
is to be
in those “rare
applied
cases where a jurisdictional error ap-
or
pears
where the interests of
justice present
compelling
Ray
State,
demand for its
application.”
549 state court reviews for error, fundamental but did not find here, such error the State did not oppose petition for certiorari by arguing default. See Brief in procedural (State 11 Opposition argued heinousness factor was not these unconstitutionally Under vague). circumstances, State has waived any possible to procedural objection our consideration of the erroneous jury instruction,9 and this Court, its contrary is not “without protestation, authority” to address Ante, at petitioner’s claim. 534.
HHHHHH We should Florida’s reject submission that unequivocally erroneous instructions at the jury of a penalty phase capital case are harmless because the trial is the actual sen- and tencer the jury’s role-is purely advisory. That submis sion is unsound as a law, see, matter of e. v. g., Riley Wain (Fla. 517 So. 2d wright, 1987); 659 Hall State, 541 (Fla. 1125, 1129 So. 2d 1989), and as a matter of fact.
As law, a matter of an essential role in jury plays Florida scheme. sentencing Under Tedder v.
jury precludes instructions at trial appellate review.... We find no funda instructions”), mental error in denied, (1990); cert. U. S. 1036 (Fla. 1989). Smalley 2d So. Tuttle, (1986) (“Our City See Oklahoma 471 U. S. decision grant represents judicial certiorari a commitment of scarce resources deciding with view to questions pre the merits of one or more of the petition. Nonjurisdictional sented in the defects of this sort should be attention no later brought to our respondent’s brief in opposition than certiorari; petition not, to the if we consider it within our discretion to waived”). deem the defect Contrary suggestion forgotten to the Court’s I have that the “de- ante, jurisdictional, 635, n., fense” is see I forgot- believe Court has ample power ten that we have disposition to review a state court’s of a question federal on its merits. If jurisdic- the Florida Court has petitioner’s claim, tion to consider I engages as believe it does when it fundamental error claim, review and reaches the merits of the then this jurisdiction Court also has to reach the merits. recommen- a jury’s its progeny,10 (Fla. 1975), 2d So. at 910. Id., weight.” “great given be must
dation recommenda- that a explained if “the facts only overturned can be life sentence of a tion *20 convincing and clear so [are] death of a sentence suggesting Ibid.11 differ.” could person reasonable no virtually sentence of a death recommendation a Similarly, jury’s Stone in example, For weight.12 great given be also must (1980), 449 U. S. denied, 986 cert. 765, 2d 378 So. State, v. death to a challenge a discussed Supreme Florida the a sentence recommended had a jury after imposed sentence 1976). 10 (Fla. State, 1 Thompson So. 2d See, g.,e. v. 328 11 Court: Supreme Florida the about observed Circuit Eleventh theAs by Tedder amply demonstrated is it said what court meant “That reverse the Tedder to standard applied it has in which of cases dozens See, of life. recommendation jury a attempt to override judge’s a trial State, Brookings v. (Fla. 1987); State, 1314, 1318 v. 2d Wasko So. g., e. 505 State, 1072, McCampbell So. 2d v. 421 (Fla. 1986); 135, 142-43 2d So. 495 Odom 1981); (Fla. State, 170, 172 v. 2d Goodwin 405 So. 1982); (Fla. 1075-76 denied, ... 925 cert. U. S. (Fla. 1981), 456 State, 936, v. 942-43 So. 2d 403 State, Malloy v. (Fla. 1980); State, 881, 885-88 (1982); Neary v. 2d So. 384 (Fla. State, 390-91 Shue So. 2d (Fla. 1979); v. 366 1190, 1193 2d So. 382 1977); Thompson v. (Fla. State, 1276, 1280 v. So. 2d McCaskill 344 1978); 1446, 1451 Dugger, 2d F. Mann 1976).” 844 v. State, (Fla. 2d 5 So. 328 S. 1071 denied, U. (en 489 banc), (1988) cert. 12 1987) (“[W]e (Fla. approve State, 182, 185 2d Smith 515 So. v. entitled death is of recommendation jury that a on basis sentence death also LeDuc v. (1988); see U. S. 971 denied, 485 cert. weight”), great our re for 1978) (“The primary standard (Fla. State, 149, 151 2d 365 So. jury a should of sentence recommended is that the sentences of death view appear considered, there unless w[ere] data if all relevant be disturbed not with the agree could persons reasonable strong believe reasons State, 386 (1979); Ross v. denied, U. S. recommendation”), cert. State, 2d 426 So. Middleton 1980) (same); (Fla. 1191, 1197 So. 2d death sentence imposition of 1982) court’s (Fla. (approving trial 552-553 denied, death), cert. recommended jury had reiterating that 1981) (same), (Fla. cert. State, 885, 891 2d Francois 407 So. (1983); 839, n. 1 2d, at (1982); cf. Grossman 525 So. S. 1122 denied, U. given be should death jury recommendation (“We held that . .. have weight”). great petitioner
of death. The
challenge
had
his
based
on a simi-
(Fla.
lar case,
1975),
Swan v.
As a matter of fact, the sentence is the sentence that usually by imposed Court. The appendix State has attached an to its App. brief, see to Brief Respondent setting A1-A70, forth concerning data capital cases that were reviewed the Florida Court between 1980 and (73%), 1991. In 341 of those cases penalty; recommended the death none those *21 judge cases did impose a lesser sentence. In 91 (19%), jury cases the a life recommended sentence; in all but one of those cases, the judge trial jury’s overrode the recom- imposed mended life sentence and a death sentence. (77%),
of those overrides Supreme however, the Florida judge’s Court vacated the trial imposed sentence and either a life sentence itself or sentencing remanded for a new hearing.14 13The Florida courts long recognized have integral the role jury that the plays in their capital sentencing g., e. See, State, Messer v. scheme. (Fla. 1976) (“[T]he So. 2d legislative intent gleaned can be from Section . 921.141 . . [indicates legislature] the sought to devise
a scheme of checks and in balances input which the jury of the serves as an integral part”); Riley see also v. Wainwright, (Fla. So. 2d 1988) (“This long Court has held that capital a Florida sentencing jury’s recommendation integral is an part of the death sentencing process”); La madline (Fla. 1974) 303 So. 2d (right to sentencing jury is “an right essential of the defendant оur under death penalty legislation”). 14In 37 out of cases, the 469 jury there was no recommendation either because the defendant had waived right jury the to -a trial or had offered plea, a or jury because the selection or trial had to be redone. jury the recom- when First, are evident.
Two conclusions certainly almost trial will sentence, the a death mends jury impose when the recommends Second, that sentence. although have been sustained occa- overrides sentence, a life normally uphold Supreme the sionally, will Court the Florida judge. clear that in jury It is therefore the rather than jury sentencing practice, at the instructions erroneous may phase between life or make the difference death. mistakenly hei- jury instructed on the has been
When
aggravating circumstance, the Flor-
nous, atrocious, or cruel
important
acknowledging
Supreme
role
Court,
ida
sentencing
jury plays
held that the
scheme, has
in the
example,
Jones
reversible. For
error was
(1990),
jury
on the
was instructed
in which
2d 1234
So.
sexually
body
been
abused
had
factor, but
heinousness
quickly as the result
occurred
and the death had
death,
after
Supreme
gunshot
Court concluded
the Florida
wound,
of a
inapplicable
its in-
and that
heinousness factor was
that the
constituted reversible error. Simi-
in the instructions
clusion
(1991),
larly,
when the trial
State,
erroneous instruction on the heinousness factor and the error in submitting an instruction on the cold, calculated, and premeditated aggravating circumstance to the when the evidence did support such an instruction, as well as the error by judge committed relying trial on that factor.
For given the reasons I above, concur in Parts I, III-B, and IV, and respectfully disagree with Parts II-A, II-B, and III-A.
Justice Scalia, concurring in part and dissenting part. join I opinion the Court’s rejects petitioner’s insofar as it challenge to the heinous, atrocious, and cruel aggravating factor. I dissent, holding however, from its that the death sentence in this case is unconstitutional because the Florida Supreme Court failed to find “harmless error” having after judge’s invalidated the trial finding. “coldness” Even finding, without three unquestionably ag- valid gravating factors remained, so that the death sentence com- began court with premise jury’s recommendation must be given significant weight by the judge. premise Once that is estab lished, a focus on how the may have jury’s affected the recommenda tion makes sense: if the jury’s tainted, recommendation is then the trial court’s sentencing decision, which took into account that recommendation, is also tainted.” Mann v. Dugger, 2d, 844 F. (footnote at 1452-1453 omitted). 16As the court explained in Riley v. Wainwright, 2d, 617 So. at 669: “If jury’s recommendation, upon which must rely, results from an unconstitutional procedure, then the entire sentencing process neces sarily is tainted procedure.” *23 requirement imposed “narrowing”
plied the so-called with Georgia, commencing with Furman v. the line of cases “error” whose The constitutional only inclusion of issue, then, concerns harmlessness is at weighing fac- in the factor “coldness” petitioner It mitigating offered. against evidence tors Eighth does not re- my Amendment view that has been mitigating any evidence, see Walton quire consideration (1990) concurring (opinion in 639, 656 Arizona, 497 U. S. increasingly concurring judgment) I part view am —a pen- complexity byzantine of the death in, as the confirmed accreting annually more alty jurisprudence becomes we are my weighing was in apparent. here Since and more doing any constitutionally required, view not question. I would af- reason, For that federal it raised no firm the sentence. death