| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 78-6621 |
| [3] | 1980.SCT.42330 <http://www.versuslaw.com>; 447
U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 |
| [4] | decided: June 20, 1980. |
| [5] | BECK v. ALABAMA |
| [6] | CERTIORARI TO THE SUPREME COURT OF ALABAMA. |
| [7] | David Klingsberg argued the cause for petitioner. With him on the
briefs were John A. Herfort, Jay Wishingrad, and John L.
Carroll. |
| [8] | Edward E. Carnes, Assistant Attorney General of Alabama, argued the
cause for respondent. With him on the brief was Charles A. Graddick,
Attorney General. |
| [9] | Stevens, J., delivered the opinion of the Court, in which Burger, C.
J., and Brennan, Stewart, Blackmun, and Powell, JJ., joined. Brennan, J.,
filed a concurring opinion, post, p. 646. Marshall, J., filed an opinion
concurring in the judgment, post, p. 646. Rehnquist, J., filed a
dissenting opinion, in which White, J., joined, post, p.
646. |
| [10] | Author: Stevens |
| [11] | MR. JUSTICE STEVENS delivered the opinion of the Court. |
| [12] | We granted certiorari to decide the following question: |
| [13] | "May a sentence of death constitutionally be imposed after a jury
verdict of guilt of a capital offense, when the jury was not permitted to
consider a verdict of guilt of a lesser included non-capital offense, and
when the evidence would have supported such a verdict?" 444 U.S.
897. |
| [14] | We now hold that the death penalty may not be imposed under these
circumstances. |
| [15] | Petitioner was tried for the capital offense of "[robbery] or attempts
thereof when the victim is intentionally killed by the defendant."*fn1
Under the Alabama death penalty statute the
requisite intent to kill may not be supplied by the felony-murder
doctrine.*fn2
Felony murder is thus a lesser included offense of the capital crime of
robbery-intentional killing. However, under the statute the judge is
specifically prohibited from giving the jury the option of convicting the
defendant of a lesser included offense.*fn3
Instead, the jury is given the choice
of either convicting the defendant of the capital crime, in which case it
is required to impose the death penalty, or acquitting him, thus allowing
him to escape all penalties for his alleged participation in the crime. If
the defendant is convicted and the death penalty imposed, the trial judge
must then hold a hearing with respect to aggravating and mitigating
circumstances; after hearing the evidence, the judge may refuse to impose
the death penalty, sentencing the defendant to life imprisonment without
possibility of parole.*fn4 |
| [16] | In this case petitioner's own testimony established his participation
in the robbery of an 80-year-old man named Roy Malone. Petitioner
consistently denied, however, that he killed the man or that he intended
his death. Under petitioner's version of the events, he and an accomplice
entered their
victim's home in the afternoon, and, after petitioner had seized the man
intending to bind him with a rope, his accomplice unexpectedly struck and
killed him. As the State has conceded, absent the statutory prohibition on
such instructions, this testimony would have entitled petitioner to a
lesser included offense instruction on felony murder as a matter of state
law.*fn5 |
| [17] | Because of the statutory prohibition, the court did not instruct the
jury as to the lesser included offense of felony murder. Instead, the jury
was told that if petitioner was acquitted of the capital crime of
intentional killing in the course of a robbery, he "must be discharged"
and "he can never be tried for anything that he ever did to Roy Malone."
Record 743. The jury subsequently convicted petitioner and imposed the
death penalty; after holding a hearing with respect to aggravating and
mitigating factors, the trial court refused to overturn that
penalty. |
| [18] | In the courts below petitioner attacked the prohibition on lesser
included offense instructions in capital cases, arguing that the Alabama
statute was constitutionally indistinguishable from the mandatory death
penalty statutes struck down in Woodson v. North Carolina, 428
U.S. 280, and Roberts v. Louisiana, 428 U.S. 325.*fn6
The Alabama Court of Criminal Appeals
rejected this argument on the ground that the jury's only function under
the Alabama statute is to determine guilt or innocence and that the death
sentence it is required to
impose after a finding of guilt is merely advisory.*fn7
In a brief opinion denying review, the Alabama Supreme Court also rejected
petitioner's arguments, citing Jacobs v. State, 361 So. 2d 640 (Ala.
1978), cert. denied, 439 U.S. 1122, in which it had
upheld the constitutionality of the Alabama death penalty statute against
a similar challenge. 365 So. 2d 1006, 1007 (1978). |
| [19] | In this Court petitioner contends that the prohibition on giving
lesser included offense instructions in capital cases violates both the
Eighth Amendment as made applicable to the States by the Fourteenth
Amendment and the Due Process Clause of the Fourteenth Amendment by
substantially increasing the risk of error in the factfinding process.
Petitioner argues that, in a case in which the evidence clearly
establishes the defendant's guilt of a serious non-capital crime such as
felony murder, forcing the jury to choose between conviction on the
capital offense and acquittal creates a danger that it will resolve any
doubts in favor of conviction.*fn8
In
response, Alabama argues that the preclusion of lesser included offense
instructions does not impair the reliability of the factfinding process or
prejudice the defendant in any way. Rather, it argues that the apparently
mandatory death penalty will make the jury more prone to acquit in a
doubtful case and that the jury's ability to force a mistrial by refusing
to return a verdict acts as a viable third option in a case in which the
jury has doubts but is nevertheless unwilling to acquit. The State also
contends that prohibiting lesser included offense instructions is a
reasonable way of assuring that the death penalty is not imposed
arbitrarily and capriciously as a result of compromise verdicts. Finally,
it argues that any error in the imposition of the death penalty by the
jury can be cured by the judge after a hearing on aggravating and
mitigating circumstances. |
| [20] | I |
| [21] | At common law the jury was permitted to find the defendant guilty of
any lesser offense necessarily included in the offense charged.*fn9
This rule originally developed as an aid to the prosecution in cases in
which the proof failed to establish some element of the crime charged. See
2 C. Wright, Federal Practice and Procedure § 515, n. 54 (1969). But it
has long been recognized that it can also be beneficial to the defendant
because it affords the jury a less drastic alternative than the choice
between conviction of the offense charged and acquittal. As MR. JUSTICE
BRENNAN explained in his opinion for
the Court in Keeble v. United States, 412 U.S. 205,
208, providing the jury with the "third option" of convicting on a lesser
included offense ensures that the jury will accord the defendant the full
benefit of the reasonable-doubt standard: |
| [22] | "Moreover, it is no answer to petitioner's demand for a jury
instruction on a lesser offense to argue that a defendant may be better
off without such an instruction. True, if the prosecution has not
established beyond a reasonable doubt every element of the offense
charged, and if no lesser offense instruction is offered, the jury must,
as a theoretical matter, return a verdict of acquittal. But a defendant is
entitled to a lesser offense instruction -- in this context or any other
-- precisely because he should not be exposed to the substantial risk that
the jury's practice will diverge from theory. Where one of the elements of
the offense charged remains in doubt, but the defendant is plainly guilty
of some offense, the jury is likely to resolve its doubts in favor of
conviction. In the case before us, for example, an intent to commit
serious bodily injury is a necessary element of the crime with which
petitioner was charged, but not of the crime of simple assault. Since the
nature of petitioner's intent was very much in dispute at trial, the jury
could rationally have convicted him of simple assault if that option had
been presented. But the jury was presented with only two options:
convicting the defendant of assault with intent to commit great bodily
injury, or acquitting him outright. We cannot say that the availability of
a third option -- convicting the defendant of simple assault -- could not
have resulted in a different verdict. Indeed, while we have never
explicitly held that the Due Process Clause of the Fifth Amendment
guarantees the right of a defendant to have the jury instructed on a
lesser included offense, it is nevertheless clear that a construction of
the Major Crimes Act to preclude such an instruction
would raise difficult constitutional questions." Id., at 212-213 (emphasis
in original). |
| [23] | Alabama's failure to afford capital defendants the protection provided
by lesser included offense instructions is unique in American criminal
law.*fn10
In the federal courts, it has long been "beyond dispute that the defendant
is entitled to an instruction on a lesser included offense if the evidence
would permit a jury rationally to find him guilty of the lesser offense
and acquit him of the greater." Keeble v. United States, supra, at 208.*fn11
Similarly, the state courts that have addressed the
issue have unanimously held that a defendant is entitled to a lesser
included offense instruction where the evidence warrants it.*fn12
Indeed, for all non-capital crimes Alabama
itself gives the defendant a right to such instructions under appropriate
circumstances. See n. 5, supra. |
| [24] | While we have never held that a defendant is entitled to a lesser
included offense instruction as a matter of due process, the nearly
universal acceptance of the rule in both state and federal courts
establishes the value to the defendant of this procedural safeguard. That
safeguard would seem to be especially important in a case such as this.
For 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. |
| [25] | Such a risk cannot be tolerated in a case in which the defendant's
life is at stake. As we have often stated, there is a significant
constitutional difference between the death penalty and lesser
punishments: |
| [26] | "[Death] is a different kind of punishment from any other which may be
imposed in this country. . . . From the point of view of the defendant, it
is different in both its severity and its finality. From the point of view
of society, the action of the sovereign in taking the life of one of its
citizens also differs dramatically from any other legitimate state action.
It is of vital importance to the defendant and to the community that any
decision to impose the death sentence be, and appear to be, based on reason
rather than caprice or emotion." Gardner v. Florida, 430 U.S.
349, 357-358 (opinion of STEVENS, J.). |
| [27] | To insure that the death penalty is indeed imposed on the basis of
"reason rather than caprice or emotion," we have invalidated procedural
rules that tended to diminish the reliability of the sentencing
determination.*fn13
The same reasoning must apply to rules that diminish the reliability of
the guilt determination. Thus, if the unavailability of a lesser included
offense instruction enhances the risk of an unwarranted conviction,
Alabama is constitutionally prohibited from withdrawing that option from
the jury in a capital case.*fn14 |
| [28] | II |
| [29] | Alabama argues, however, that petitioner's factual premise is wrong
and that, in the context of an apparently mandatory death
penalty statute, the preclusion of lesser included offense instructions
heightens, rather than diminishes, the reliability of the guilt
determination. The State argues that, because the jury is led to believe
that a death sentence will automatically follow a finding of guilt,*fn15
it will be more likely to acquit than to convict whenever it has anything
approaching a reasonable doubt. In support of this theory the State relies
on the historical data described in Woodson v. North Carolina,
428 U.S., at 293 (opinion of STEWART, POWELL, and
STEVENS, JJ.), which indicated that American juries have traditionally
been so reluctant to impose the death penalty that they have "with some
regularity, disregarded their oaths and refused to convict defendants
where a death sentence was the automatic consequence of a guilty
verdict." |
| [30] | The State's argument is based on a misreading of our cases striking
down mandatory death penalties. In Furman v. Georgia, 408 U.S.
238, the Court held unconstitutional a Georgia statute that
vested the jury with complete and unguided discretion to impose the death
penalty or not as it saw fit, on the ground that such a procedure led to
the "wanton" and "freakish" imposition of the penalty. Id., at 310
(STEWART, J., concurring). In response to Furman several States enacted
statutes that purported to withdraw any and all discretion from the jury
with respect to the punishment decision by making the death penalty
automatic on a finding of guilt. But, as the prevailing opinion noted in
Woodson v. North Carolina, in so doing the States "simply papered over the
problem of unguided and unchecked jury discretion." 428 U.S., at
302 (opinion of STEWART, POWELL, and STEVENS, JJ.). For, as
historical evidence indicated, juries faced with a mandatory death penalty
statute often created
their own sentencing discretion by distorting the factfinding process,
acquitting even a clearly guilty defendant if they felt he did not deserve
to die for his crime. Because the jury was given no guidance whatsoever
for determining when it should exercise this de facto sentencing power,
the mandatory death statutes raised the same possibility that the death
penalty would be imposed in an arbitrary and capricious manner as the
statute held invalid in Furman.*fn16 |
| [31] | The Alabama statute, which was enacted after Furman but before
Woodson, has many of the same flaws that made the North Carolina statute
unconstitutional. Thus, the Alabama statute makes the guilt determination
depend, at least in part, on the jury's feelings as to whether or not the
defendant deserves the death penalty, without giving the jury any
standards to guide its decision on this issue. |
| [32] | In Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U.S. 1122, Chief Justice Torbert attempted to
distinguish the Alabama death statute from the North Carolina and
Louisiana statutes on the ground that the unavailability of lesser
included offense instructions substantially reduces the risk of jury
nullification. Thus, because of their reluctance to acquit a defendant who
is obviously guilty of some serious crime, juries will be unlikely to
disregard their oaths and acquit a defendant who is guilty of a capital
crime simply because of their abhorrence of the death penalty. However,
because the death penalty is mandatory, the State argues that the jury
will be especially careful to accord the defendant the full benefit of the
reasonable-doubt standard. In the State's view the end result is a perfect
balance between competing emotional pressures that ensures the defendant a
reliable procedure, while at the same time reducing the possibility of
arbitrary and capricious guilt determinations.*fn17 |
| [33] | The State's theory, however, is supported by nothing more than
speculation. The 96% conviction rate achieved by prosecutors under the
Alabama statute hardly supports the notion that the statute creates such a
perfect equipoise.*fn18
Moreover,
it seems unlikely that many jurors would react in the theoretically
perfect way the State suggests. As Justice Shores stated in dissent in
Jacobs v. State, supra, at 651-652: |
| [34] | "The Supreme Court of the United States did remark in Furman, infra,
and again in Woodson, supra, that this nation abhorred the mandatory death
sentence. . . . I suggest that, although there is no historical data to
support it, most, if not all, jurors at this point in our history perhaps
equally abhor setting free a defendant where the evidence establishes his
guilt of a serious crime. We have no way of knowing what influence either
of these factors have on a jury's deliberation, and which of these
unappealing alternatives a jury opts for in a particular case is a matter
of purest conjecture. We cannot know that one outweighs the other. Jurors
are not expected to come into the jury box and leave behind all that their
human experience has taught them. The increasing crime rate in this
country is a source of concern to all Americans. To expect a jury to
ignore this reality and to find a defendant innocent and thereby set him
free when the evidence establishes beyond doubt that he is guilty of some
violent crime requires of our juries clinical detachment from the reality
of human experience. . . ." |
| [35] | In the final analysis the difficulty with the Alabama statute is that
it interjects irrelevant considerations into the factfinding process,
diverting the jury's attention from the central issue of whether the State
has satisfied its burden of proving beyond a reasonable doubt that the
defendant is guilty of a capital crime. Thus, on 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 may encourage it to acquit
for an equally impermissible reason -- that, whatever his crime, the
defendant does not deserve death.*fn19
In any particular case these two extraneous factors may favor the
defendant or the prosecution or they may cancel each other out. But in
every case they introduce a level of uncertainty and unreliability into
the factfinding process that cannot be tolerated in a capital
case. |
| [36] | III |
| [37] | The State also argues that, whatever the effect of precluding lesser
included offense instructions might otherwise be, there is no possibility
of harm under the Alabama statute because of two additional safeguards.
First, although the jury may not convict the defendant of a lesser
included offense, the State argues that it may refuse to return any
verdict at all in a doubtful case, thus creating a mistrial. After a
mistrial, the State may reindict on the capital offense or on lesser
included offenses.*fn20
In this case the jury was instructed that
a mistrial would be declared if it was unable to agree on a verdict or if
it was unable to agree on fixing the death penalty; it was also told that,
in the event of a mistrial, the defendant could be tried again. Record
743. |
| [38] | We are not persuaded by the State's argument that the mistrial
"option" is an adequate substitute for proper instructions on lesser
included offenses. It is extremely doubtful that juries will understand
the full implications of a mistrial*fn21
or will have any confidence that their choice of the mistrial option will
ultimately lead to the right result. Thus, they could have no assurance
that a second trial would end in the conviction of the defendant on a
lesser included offense. Moreover, invoking the mistrial option in a case
in which the jury agrees that the defendant is guilty of some offense,
though not the offense charged, would require the jurors to violate their
oaths to acquit in a proper case -- contrary to the State's assertions
that juries should not be expected to make such lawless choices. Finally,
the fact that lesser included offense instructions have traditionally been
given in non-capital cases despite the availability of the mistrial
"option" indicates
that such instructions provide a necessary additional measure of
protection for the defendant. |
| [39] | The State's second argument is that, even if a defendant is
erroneously convicted, the fact that the judge has the ultimate sentencing
power will ensure that he is not improperly sentenced to death. Again, we
are not persuaded that sentencing by the judge compensates for the risk
that the jury may return an improper verdict because of the unavailability
of a "third option." |
| [40] | If a fully instructed jury would find the defendant guilty only of a
lesser, non-capital offense, the judge would not have the opportunity to
impose the death sentence. Moreover, it is manifest that the jury's
verdict must have a tendency to motivate the judge to impose the same
sentence that the jury did. Indeed, according to statistics submitted by
the State's Attorney General, it is fair to infer that the jury verdict
will ordinarily be followed by the judge even though he must hold a
separate hearing in aggravation and mitigation before he imposes
sentence.*fn22
Under these circumstances, we are unwilling to presume that a post-trial
hearing will always correct whatever
mistakes have occurred in the performance of the jury's factfinding
function. |
| [41] | Accordingly, the judgment of the Alabama Supreme Court
is |
| [42] | Reversed. |
| [43] | Disposition |
| [44] | 365 So. 2d 1006, reversed. |
| [45] | MR. JUSTICE BRENNAN, concurring. |
| [46] | Although I join the Court's opinion, I continue to believe that the
death penalty is, in all circumstances, contrary to the Eighth Amendment's
prohibition against imposition of cruel and unusual punishments. Gregg v.
Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J.,
dissenting). |
| [47] | MR. JUSTICE MARSHALL, concurring in the judgment. |
| [48] | I continue to believe that the death penalty is, under all
circumstances, cruel and unusual punishment prohibited by the Eighth and
Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 314-374 (1972) (MARSHALL, J., concurring); Gregg v.
Georgia, 428 U.S. 153, 231-241 (1976) (MARSHALL, J.,
dissenting); Godfrey v. Georgia, 446 U.S. 420,
433-442 (1980) (MARSHALL, J., concurring in judgment). In addition, I
agree with the Court that Alabama's prohibition on giving lesser included
offense instructions in capital cases is unconstitutional because it
substantially increases the risk of error in the factfinding process. I do
not, however, join in the Court's assumption that the death penalty may
ever be imposed without violating the command of the Eighth Amendment that
no "cruel and unusual punishments" be imposed. Lockett v. Ohio,
438 U.S. 586, 621 (1978) (MARSHALL, J., concurring in
judgment); Bell v. Ohio, 438 U.S. 637, 643-644 (1978)
(MARSHALL, J., concurring in judgment). I join in the judgment of the
Court. |
| [49] | MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins,
dissenting. |
| [50] | The opinion of the Court begins by stating that we granted certiorari
to decide the question of whether a sentence of death
may be constitutionally imposed after a jury verdict of guilt of a capital
offense, when the jury was not permitted to consider a verdict of guilt of
a lesser included non-capital offense where the evidence would have
supported such a verdict. I find the Court's treatment of this issue
highly unusual, since although this question was raised in the Alabama
trial court and the Alabama intermediate Court of Appeals, it was not
preserved in the Supreme Court of Alabama. That court began its opinion
with this language: |
| [51] | "Petitioner Beck raises only one issue
here: |
| [52] | "'Whether the Alabama Court of Criminal Appeals erred in its finding
that the Alabama Death Penalty Statute is not in violation of Article III,
Section 43, Article V, Section 124 and Amendment 38, of the 1901
Constitution of Alabama.'" 365 So. 2d 1006, 1007. |
| [53] | Obviously, unless the Supreme Court of Alabama was wholly in error in
deciding what issue petitioner had raised there, it was obviously not a
question involving the United States Constitution. |
| [54] | I do not believe it suffices, under the jurisdiction granted to us by
the Constitution and by Congress, to brush this matter off as the Court
does in its footnote 6 on the grounds that petitioner presented his claim
"in some fashion" to the Supreme Court of Alabama, and that "[the] State
has never argued that this presentation was insufficient, as a matter of
state law, to preserve the issue." |
| [55] | This is not a matter that may be stipulated or waived by any of the
parties to a case decided on its merits here. Title 28 U. S. C. § 1257
provides that our certiorari jurisdiction extends only to "[final]
judgments or decrees rendered by the highest court of a State in which a
decision could be had. . . ." |
| [56] | In Hulbert v. Chicago, 202 U.S. 275, 280 (1906),
this Court said: |
| [57] | "It is urged that in the writ of error and petition for citation it is
stated that certain rights and privileges were claimed
under the Constitution of the United States, and that the Supreme Court of
the State of Illinois decided against such rights and privileges, and, it
is further urged, that the chief justice of the court allow the writ of
error. This is not sufficient." |
| [58] | More recently, in Street v. New York, 394 U.S. 576, 582 (1969), the Court has said: |
| [59] | "Moreover, this Court has stated that when, as here, the highest state
court has failed to pass upon a federal question, it will be assumed that
the omission was due to want of proper presentation in the state courts
unless the aggrieved party in this Court can affirmatively show the
contrary." (Emphasis supplied.) |
| [60] | Thus it is insufficient that the State "has never argued" that a
judgment under review is not that of the highest court of the State in
which a judgment could be had; it will be assumed that the omission was
due to want of proper presentation in the state courts, unless the
aggrieved party in this Court can affirmatively show the contrary. Here I
am not convinced that such a showing has been made. |
| [61] | Believing, therefore, because of the proceedings in the Supreme Court
of Alabama, that we do not have jurisdiction under 28 U. S. C. § 1257 to
decide the question which the Court purports to decide, I
dissent. |
|
| |
| Opinion Footnotes | |
|
| |
| [62] | *fn1
There are 14 capital offenses under the Alabama statute, Ala. Code §§
13-11-2 (a)(1)-(14) (1975):
"(1) Kidnapping for ransom or attempts thereof, when the victim is
intentionally killed by the defendant; "(2) Robbery or attempts thereof
when the victim is intentionally killed by the defendant; "(3) Rape when
the victim is intentionally killed by the defendant; carnal knowledge of a
girl under 12 years of age, or abuse of such girl in an attempt to have
carnal knowledge, when the victim is intentionally killed by the
defendant; "(4) Nighttime burglary of an occupied dwelling when any of the
occupants is intentionally killed by the defendant; "(5) The murder of any
police officer, sheriff, deputy, state trooper or peace officer of any
kind, or prison or jail guard while such prison or jail guard is on duty
or because of some official or job-related act or performance of such
officer or guard; "(6) Any murder committed while the defendant is under
sentence of life imprisonment; "(7) Murder in the first degree when the
killing was done for a pecuniary or other valuable consideration or
pursuant to a contract or for hire; "(8) Indecent molestation of, or an
attempt to indecently molest, a child under the age of 16 years, when the
child victim is intentionally killed by the defendant; "(9) Willful
setting off or exploding dynamite or other explosive under circumstances
now punishable by section 13-2-60 or 13-2-61, when a person is
intentionally killed by the defendant because of said explosion; "(10)
Murder in the first degree wherein two or more human beings are
intentionally killed by the defendant by one or a series of acts; "(11)
Murder in the first degree where the victim is a public official or public
figure and the murder stems from or is caused by or related to his
official position, acts or capacity; "(12) Murder in the first degree
committed while the defendant is engaged or participating in the act of
unlawfully assuming control of any aircraft by use of threats or force
with intent to obtain any valuable consideration for the release of said
aircraft or any passenger or crewman thereon, or to direct the route or
movement of said aircraft, or otherwise exert control over said aircraft;
"(13) Any murder committed by a defendant who has been convicted of murder
in the first or second degree in the 20 years preceding the crime; or
"(14) Murder when perpetrated against any witness subpoenaed to testify at
any preliminary hearing, trial or grand jury proceeding against the
defendant who kills or procures the killing of witness, or when
perpetrated against any human being while intending to kill such
witness." |
| [63] | *fn2
Alabama Code § 13-11-2 (b) (1975) states that "[evidence] of intent under
this section shall not be supplied by the felony-murder doctrine." In
Ritter v. State, 375 So. 2d 270, 275 (1979), cert. pending, No. 79-5741,
the Alabama Supreme Court held that the State could not satisfy its burden
of proof under the new death penalty statute simply by showing that the
defendant intended to commit robbery or even by showing that he should
have known that there was a substantial possibility that someone would be
killed. Although the State is not required to prove that the defendant was
the actual triggerman, it must show that he had a "particularized intent"
to kill the victim or that he "sanctioned and facilitated the crime [of
intentional killing] so that his culpability is comparable to that of" the
actual killer. |
| [64] | *fn3
Alabama Code § 13-11-2 (a) (1975) provides:
"If the jury finds the defendant guilty, it shall fix the punishment at
death when the defendant is charged by indictment with any of the
following offenses and with aggravation, which must also be averred in the
indictment, and which offenses so charged with said aggravation shall not
include any lesser offenses." The last phrase of this subsection has been
consistently construed to preclude any lesser included offense
instructions in capital cases. See Jacobs v. State, 361 So. 2d 640, 646
(Ala. 1978) (Torbert, C. J., concurring in part and dissenting in part),
cert. denied, 439 U.S. 1122; Evans v. Birtton, 472 F.Supp. 707, 714 (SD Ala.
1979). |
| [65] | *fn4
Alabama Code § 13-11-3 (1975) provides:
"If the jury finds the defendant guilty of one of the aggravated
offenses listed in section 13-11-2 and fixes the punishment at death, the
court shall thereupon hold a hearing to aid the court to determine whether
or not the court will sentence the defendant to death or to life
imprisonment without parole. In the hearing, evidence may be presented as
to any matter that the court deems relevant to sentence and shall include
any matters relating to any of the aggravating or mitigating circumstances
enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the
court deems to have probative value may be received, regardless of its
admissibility under the exclusionary rules of evidence, provided that the
defendant is accorded a fair opportunity to rebut any hearsay statements;
provided further, that this section shall not be construed to authorize
the introduction of any evidence secured in violation of the Constitution
of the United States or the state of Alabama. The state and the defendant,
or his counsel, shall be permitted to present argument for or against the
sentence of death." |
| [66] | *fn5
The Alabama rule in cases other than capital cases is that the defendant
is entitled to a lesser included offense instruction if "there is any
reasonable theory from the evidence which would support the position."
Fulghum v. State, 291 Ala. 71, 75, 277 So. 2d 886, 890 (1973). The State
concedes that under this standard petitioner would have been entitled to
instructions on first-degree (felony) murder and robbery. Brief for
Respondent 78-79; Tr. of Oral Arg. 23. The parties disagree as to whether
petitioner also would have been entitled to an instruction on
second-degree murder under state law. We, of course, have no occasion to
pass on this issue. |
| [67] | *fn6
In the trial court petitioner's counsel argued that telling the jury that
"you have got a choice of two things, either you can sentence him to die
or you can acquit him" unconstitutionally interfered with its factfinding
role and made the statute an unconstitutional mandatory death penalty.
Record 40. In the Alabama Court of Criminal Appeals the court described
petitioner's argument with respect to the constitutionality of the Alabama
death penalty statute as follows:
"The trial jury cannot be instructed on lesser included offenses. "In
the absence of such a provision, the appellant insists that the only
choice that a petit jury has is imposing death or acquitting the
defendant. He states that because only those two choices are presented to
the jury, the statute can only be interpreted as having a mandatory death
provision." 365 So. 2d 985, 999 (1978). In his petition for certiorari to
the Alabama Supreme Court petitioner specifically stated that he was
challenging the Alabama statute as being in violation of the Eighth,
Sixth, and Fourteenth Amendments to the United States Constitution and
argued that it is "in fact a mandatory death sentence." However,
petitioner did not explore these issues more fully in his brief to the
Alabama Supreme Court, Tr. of Oral Arg. 5, and, in its one-paragraph
opinion affirming the judgment of the Alabama Court of Criminal Appeals,
the Supreme Court adverted only to the state constitutional issues
petitioner had raised. In his dissenting opinion MR. JUSTICE REHNQUIST
takes the position that we are required to construe the Alabama Supreme
Court's failure to address petitioner's federal constitutional claims as a
determination that petitioner had waived those claims. We disagree. It is
clear that petitioner did present his federal claims in some fashion to
the Alabama Supreme Court. The State has never argued that this
presentation was insufficient, as a matter of state law, to preserve the
issue. On the contrary, in its brief in opposition to the petition for
certiorari, the State argued that "the Alabama Appellate Courts have
reviewed these matters raised in the petition, fully considered them and
correctly decided the issues." Similarly, after certiorari was granted,
the State again did not argue that petitioner's due process and Eighth
Amendment claims were not properly raised or preserved below. While the
parties of course cannot confer jurisdiction on this Court by agreement,
we should not simply brush aside the Alabama Attorney General's view of
his own State's law. Cf. Chambers v. Mississippi, 410 U.S. 284, 290, n. 3. That is especially true in a case such as this,
where the death penalty was imposed in a plainly unconstitutional manner.
Cf. Vachon v. New Hampshire, 414 U.S.
478. |
| [68] | *fn7
365 So. 2d, at 1000. The Alabama Court of Criminal Appeals relied on
Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert. denied, 439
U.S. 1122, for this proposition. The majority in Jacobs did not
specifically discuss the validity of the prohibition on lesser included
offense instructions. However, in an opinion concurring in part and
dissenting in part, Chief Justice Torbert stated that, far from being
suspect, the prohibition helped to save the statute from being an
unconstitutional mandatory death penalty. He noted that in Roberts v.
Louisiana, 428 U.S. 325, this Court had struck down a
mandatory death penalty statute which required the judge to give the jury
the option of convicting on lesser included offenses whether or not such
instructions were warranted by the evidence, on the ground that such a
statute gave the jury de facto, standardless sentencing discretion.
Because Alabama's statute withdraws from the jury the discretion to
control the imposition of the death penalty by convicting the defendant on
a lesser included offense and because it is the judge and not the jury who
does the actual sentencing, the chief justice concluded that the statute
was acceptable as a matter of federal constitutional law. |
| [69] | *fn8
Petitioner also argues that, because Alabama law requires a trial judge to
give lesser included offense instructions where appropriate in non-capital
cases, the total prohibition on such instructions in capital cases
constitutes an irrational discrimination violative of the Equal Protection
Clause of the Fourteenth Amendment. In view of our disposition of the
case, it is not necessary to consider this issue. Moreover, petitioner
failed to raise this claim in the courts below. |
| [70] | *fn9
2 M. Hale, Pleas of the Crown 301-302 (1736); 2 W. Hawkins, Pleas of the
Crown 623 (6th ed. 1787); 1 J. Chitty, Criminal Law 250 (5th Am. ed.
1847); T. Starkie, Treatise on Criminal Pleading 351-352 (2d ed.
1822). |
| [71] | *fn10
Mississippi's post- Furman death penalty statute also contained a
prohibition on charging lesser included offenses. In Jackson v. State, 337
So. 2d 1242, 1255 (1976), the Mississippi Supreme Court struck down this
part of the statute on the ground that it "constitutes an impediment to
full and complete administration of justice in the trial of capital cases
and is therefore not binding on the courts. . . ." While warning that
lesser included offense instructions should not be given "indiscriminately
or automatically," the court held that they should continue to be given
when "warranted by the evidence." |
| [72] | *fn11
This principle was first announced in Stevenson v. United States, 162 U.S. 313, 323:
"A judge may be entirely satisfied from the whole evidence in the case
that the person doing the killing was actuated by malice; that he was not
in any such passion as to lower the grade of the crime from murder to
manslaughter by reason of any absence of malice; and yet if there be any
evidence fairly tending to bear upon the issue of manslaughter, it is the
province of the jury to determine from all the evidence what the condition
of mind was, and to say whether the crime was murder or manslaughter." See
also Berra v. United States, 351 U.S. 131, 134, where
Mr. Justice Harlan indicated that the defendant's entitlement to such an
instruction could not be doubted: "In a case where some of the elements of
the crime charged themselves constitute a lesser crime, the defendant, if
the evidence justified it, would no doubt be entitled to an instruction
which would permit a finding of guilt of the lesser offense. See Stevenson
v. United States, 162 U.S. 313." Rule 31 (c) of the
Federal Rules of Criminal Procedure provides that "[the] defendant may be
found guilty of an offense necessarily included in the offense charged. .
. ." Although the Rule is permissively phrased, it has been universally
interpreted as granting a defendant a right to a requested lesser included
offense instruction if the evidence warrants it. See, e. g., United States
v. Scharf, 558 F.2d 498, 502 (CA8 1977); United
States v. Crutchfield, 547 F.2d 496, 500 (CA9 1977);
Government of Virgin Islands v. Carmona, 422 F.2d 95,
100 (CA3 1970); 2 C. Wright, Federal Practice and Procedure § 515, n. 57
(1969). |
| [73] | *fn12
Although the States vary in their descriptions of the quantum of proof
necessary to give rise to a right to a lesser included offense
instruction, they agree that it must be given when supported by the
evidence. See, e. g., Christie v. State, 580 P. 2d 310 (Alaska 1978);
State v. Valencia, 121 Ariz. 191, 589 P. 2d 434 (1979); Westbrook v.
State, 265 Ark. 736, 580 S. W. 2d 702 (1979); People v. Preston, 9 Cal. 3d
308, 508 P. 2d 300 (1973); People v. White, 191 Colo. 353, 553 P. 2d 68
(1976); State v. Brown, 173 Conn. 254, 377 A. 2d 268 (1977); Matthews v.
State, 310 A. 2d 645 (Del. 1973); State v. Terry, 336 So. 2d 65 (Fla.
1976); Loury v. State, 147 Ga. App. 152, 248 S. E. 2d 291 (1978); State v.
Travis, 45 Haw. 435, 368 P. 2d 883 (1962); State v. Beason, 95 Idaho 267,
506 P. 2d 1340 (1973); People v. Simpson, 57 Ill. App. 3d 442, 373 N. E.
2d 809 (1978); Pruitt v. State, 269 Ind. 559, 382 N. E. 2d 150 (1978);
State v. Millspaugh, 257 N. W. 2d 513 (Iowa 1977); State v. White, 225
Kan. 87, 587 P. 2d 1259 (1978); Martin v. Commonwealth, 571 S. W. 2d 613
(Ky. 1978); State v. Carmichael, 405 A. 2d 732 (Me. 1979); Blackwell v.
State, 278 Md. 466, 365 A. 2d 545 (1976), cert. denied, 431 U.S.
918; Commonwealth v. Santo, 375 Mass. 299, 376 N. E. 2d 866
(1978); People v. Jones, 395 Mich. 379, 236 N. W. 2d 461 (1975); State v.
Merrill, 274 N. W. 2d 99 (Minn. 1978); Jackson v. State, 337 So. 2d 1242
(Miss. 1976); State v. Stone, 571 S. W. 2d 486 (Mo. App. 1978); State v.
Ostwald, 180 Mont. 530, 591 P. 2d 646 (1979); State v. Hegwood, 202 Neb.
379, 275 N. W. 2d 605 (1979); Colle v. State, 85 Nev. 289, 454 P. 2d 21
(1969); State v. Boone, 119 N. H. 594, 406 A. 2d 113 (1979); State v.
Saulnier, 63 N. J. 199, 306 A. 2d 67 (1973); State v. Aubrey, 91 N. M. 1,
569 P. 2d 411 (1977); People v. Henderson, 41 N. Y. 2d 233, 359 N. E. 2d
1357 (1976); State v. Drumgold, 297 N. C. 267, 254 S. E. 2d 531 (1979);
State v. Piper, 261 N. W. 2d 650 (N. D. 1977); State v. Kilby, 50 Ohio St.
2d 21, 361 N. W. 2d 1336 (1977); Gilbreath v. State, 555 P. 2d 69 (Okla.
Crim. App. 1976); State v. Thayer, 32 Ore. App. 193, 573 P. 2d 758 (1978);
Commonwealth v. Terrell, 482 Pa. 303, 393 A. 2d 1117 (1978); State v.
Funchess, 267 S. C. 427, 229 S. E. 2d 331 (1976); State v. Grimes, 90 S.
D. 43, 237 N. W. 2d 900 (1976); Howard v. State, 578 S. W. 2d 83 (Tenn.
1979); Day v. State, 532 S. W. 2d 302 (Tex. Crim. App. 1975); State v.
Gillian, 23 Utah 2d 372, 463 P. 2d 811 (1970); Painter v. Commonwealth,
210 Va. 360, 171 S. E. 2d 166 (1969); State v. Workman, 90 Wash. 2d 443,
584 P. 2d 382 (1978); State v. Wayne, W. Va. , 245 S. E. 2d 838 (1978);
Leach v. State, 83 Wis. 2d 199, 265 N. W. 2d 495 (1978); Jones v. State,
580 P. 2d 1150 (Wyo. 1978). |
| [74] | *fn13
See Gardner v. Florida, 430 U.S. 349 (opinion of
STEVENS, J.); Lockett v. Ohio, 438 U.S. 586. In
Lockett THE CHIEF JUSTICE explained the rationale for requiring more
reliable procedures in capital sentencing determinations:
"There is no perfect procedure for deciding in which cases governmental
authority should be used to impose death. But a statute that prevents the
sentencer in all capital cases from giving independent mitigating weight
to aspects of the defendant's character and record and to circumstances of
the offense proffered in mitigation creates the risk that the death
penalty will be imposed in spite of factors which may call for a less
severe penalty. When the choice is between life and death, that risk is
unacceptable and incompatible with the commands of the Eighth and
Fourteenth Amendments." Id., at 605. See also Woodson v. North Carolina, 428 U.S. 280, 305 (opinion of STEWART, POWELL, and
STEVENS, JJ.): "Death, in its finality, differs more from life
imprisonment than a 100-year prison term differs from one of only a year
or two. Because of that qualitative difference, there is a corresponding
difference in the need for reliability in the determination that death is
the appropriate punishment in a specific case." |
| [75] | *fn14
We need not and do not decide whether the Due Process Clause would require
the giving of such instructions in a non-capital case. |
| [76] | *fn15
The jury is not told that the judge is the final sentencing authority.
Rather, the jury is instructed that it must impose the death sentence if
it finds the defendant guilty and is led to believe, by implication, that
its sentence will be final. |
| [77] | *fn16
The same analysis led to the conclusion that Louisiana's death penalty
statute was unconstitutional. Roberts v. Louisiana, 428 U.S. 325 (opinion of STEWART, POWELL, and STEVENS, JJ.). That case
involved a mandatory death penalty statute that required the judge to give
a lesser included offense instruction whether or not it was justified by
the evidence. Because such a procedure "invites the jurors to disregard
their oaths and choose a verdict for a lesser offense whenever they feel
the death penalty is inappropriate," it was the equivalent of a
discretionary death statute in which the jury was given complete and
unreviewable discretion, unguided by any standards as to when the death
penalty was appropriate. Id., at 335. |
| [78] | *fn17
In Gregg v. Georgia, 428 U.S. 153, 199 (opinion of
STEWART, POWELL, and STEVENS, JJ.), the prevailing opinion specifically
rejected the argument that the new Georgia statute was unconstitutional
because the availability of lesser included offense instructions made it
possible that a jury might erroneously remove a defendant from
consideration as a candidate for the death penalty. Under a statute like
Georgia's, where guilt is determined separately from punishment, there is
little risk that the jury will use its power to decide guilt to make a de
facto punishment decision. Thus, eliminating lesser included offense
instructions would not have the effect of reducing the risk of
arbitrariness in the imposition of the death penalty. On the contrary, as
was stated in a footnote in Gregg, eliminating this and other procedural
safeguards that have long been accorded criminal defendants would raise
serious constitutional questions. Id., at 199, n. 50.
Thus, it is only in cases like this in which the preclusion of lesser
included offenses is linked to a mandatory death penalty that the State
could even raise the possibility that the elimination of this procedural
safeguard was a permissible way to reduce the arbitrary and capricious
infliction of the death penalty. |
| [79] | *fn18
Forty-eight out of the first 50 defendants tried under the Alabama statute
were convicted. See Brief in Opposition in Jacobs v. Alabama, O. T. 1978,
No. 78-5696, pp. 10, 35. In this case the State has argued that the reason
for the high conviction rate is that prosecutors rarely indict for capital
offenses except in the clearest of cases because of the risk that a
failure of proof on an essential element of the crime might lead to an
acquittal. Assuming that this is the reason for the high conviction rate,
the statistics still do not support the hypothesis that juries will be
more likely to acquit than convict in a doubtful case. |
| [80] | *fn19
The closing arguments in this case indicate that under the Alabama statute
the issue of whether or not the defendant deserves the death penalty will
often seem more important than the issue of whether the State has proved
each and every element of the capital crime beyond a reasonable doubt.
Thus, in this case both the prosecutors and defense attorneys spent a
great deal of argument time on the desirability of the death penalty in
general and its application to the petitioner in particular, rather than
focusing on the crucial issue of whether the evidence showed that
petitioner had possessed the intent necessary to convict on the capital
charge. |
| [81] | *fn20
Alabama Code § 13-11-2 (c) (1975) provides:
"[If] the jury finds the defendant not guilty, the defendant must be
discharged. The court may enter a judgment of mistrial upon failure of the
jury to agree on a verdict of guilty or not guilty or on the fixing of the
penalty of death. After entry of a judgment of mistrial, the defendant may
be tried again for the aggravated offense, or he may be reindicted for an
offense wherein the indictment does not allege an aggravated circumstance.
If the defendant is reindicted for an offense wherein the indictment does
not allege an aggravated circumstance, the punishment upon conviction
shall be as heretofore or hereafter provided by law; however, the
punishment shall not be death or life imprisonment without
parole." |
| [82] | *fn21
The jury in this case could hardly have been sure of the effect of a
mistrial. In his closing argument one of petitioner's attorneys told the
jury that "if I can have any opportunity under any reindictment or any
other way to take him [petitioner] before this bar of justice and enter a
plea of guilty of murder, robbery, either one, life in prison, I'll take
him." Record 689. At another point, however, petitioner's other attorney
indicated that petitioner could still be punished even if he were
acquitted, stating: "I submit to you if you acquit him he's still in the
Etowah County Jail. I submit to you if you acquit him that he can receive
his due punishment, but I say to you his due punishment is not death."
Id., at 709.
In his instructions to the jury the trial judge stated that, if
acquitted, petitioner could not be tried "for anything he ever did to Roy
Malone." And, although he explained that petitioner could be retried in
the event of a mistrial, he did not elaborate on what that retrial would
entail. Id., at 743. |
| [83] | *fn22
The State's brief in opposition to the petition for certiorari in Jacobs
v. Alabama, O. T. 1978, No. 78-5696, states that of the first 45
defendants sentenced after conviction by a jury of capital offenses, 37
received the death penalty from the trial judge. See pp. 10, 35 of that
brief. In his dissent in Jacobs v. State, 361 So. 2d, at 650-651, Justice
Jones pointed out the practical obstacles to treating the jury's
imposition of the death penalty as being purely advisory:
"[To] leave sentence reduction in the prerogative of the trial court is
to place undue pressures upon this office. Again, admittedly, a trial
judge must often be the bulwark of the legal system when presented with
unpopular causes and adverse public opinion. This State's recent history,
however, reflects the outcry of unjustified criticism attendant with a
trial judge's reduction of a sentence to life imprisonment without
possibility of parole, after a jury has returned a sentence of death.
Clearly, this pressure constitutes an undue compulsion on the trial judge
to conform the sentence which he imposes with that previously returned by
the jury." (Footnote omitted.) |