| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 74-6593 |
| [3] | 1977.SCT.41222 <http://www.versuslaw.com>; 430
U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 |
| [4] | March 22, 1977 |
| [5] | GARDNER v. FLORIDA |
| [6] | CERTIORARI TO THE SUPREME COURT OF FLORIDA |
| [7] | Charles H. Livingston argued the cause for petitioner. With him on the
briefs were James A. Gardner, Jack Greenberg, James M.
Nabrit III, Peggy C. Davis, and Anthony G. Amsterdam. |
| [8] | Wallace E. Allbritton, Assistant Attorney General of Florida, argued
the cause for respondent. With him on the brief was Robert L. Shevin,
Attorney General. |
| [9] | Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell,
Rehnquist, Stevens |
| [10] | Author: Stevens |
| [11] | MR. JUSTICE STEVENS announced the judgment of the Court and delivered
an opinion, in which MR. JUSTICE STEWART and MR. JUSTICE POWELL
joined. |
| [12] | Petitioner was convicted of first-degree murder and sentenced to
death. When the trial judge imposed the death sentence he stated that he
was relying in part on information in a presentence investigation report.
Portions of the report were not disclosed to counsel for the parties.
Without reviewing the confidential portion of the presentence report, the
Supreme Court of Florida, over the dissent of two justices, affirmed the
death sentence. 313 So. 2d 675 (1975). We conclude that this procedure
does not satisfy the constitutional command that no person shall be
deprived of life without due process of law. |
| [13] | I |
| [14] | On June 30, 1973, the petitioner assaulted his wife with a blunt
instrument, causing her death. On January 10, 1974, after a trial in the
Circuit Court of Citrus County, Fla., a jury found him guilty of
first-degree murder. |
| [15] | The separate sentencing hearing required by Florida law in capital
cases*fn1
was held later on the same day. The State merely introduced two
photographs of the decedent, otherwise relying
on the trial testimony. That testimony, if credited, was sufficient to
support a finding of one of the statutory aggravating circumstances, that
the felony committed by petitioner "was especially heinous, atrocious, or
cruel."*fn2 |
| [16] | In mitigation petitioner testified that he had consumed a vast
quantity of alcohol during a day-long drinking spree which preceded the
crime, and professed to have almost no recollection of the assault itself.
His testimony, if credited, was sufficient to support a finding of at
least one of the statutory mitigating circumstances.*fn3 |
| [17] | After hearing this evidence the jury was instructed to determine by a
majority vote (1) whether the State had proved one of the aggravating
circumstances defined by statute, (2) whether mitigating circumstances
outweighed any such aggravating circumstance, and (3) based on that
determination, whether the defendant should be sentenced to life or
death. |
| [18] | After the jury retired to deliberate, the judge announced that he was
going to order a presentence investigation of petitioner.*fn4
Twenty-five minutes later the jury returned its advisory verdict. It
expressly found that the mitigating circumstances outweighed
the aggravating circumstances and advised the court to impose a life
sentence. App. 131. |
| [19] | The presentence investigation report was completed by the Florida
Parole and Probation Commission on January 28, 1974. On January 30, 1974,
the trial judge entered findings of fact and a judgment sentencing
petitioner to death. His ultimate finding was that the felony "was
especially heinous, atrocious or cruel; and that such aggravating
circumstances outweighs the mitigating circumstance, to-wit: none." Id.,
at 138. As a preface to that ultimate finding, he recited that his
conclusion was based on the evidence presented at both stages of the
bifurcated proceeding, the arguments of counsel, and his review of "the
factual information contained in said pre-sentence investigation."
Ibid. |
| [20] | There is no dispute about the fact that the presentence investigation
report contained a confidential portion which was not disclosed to defense
counsel. Although the judge noted in his findings of fact that the State
and petitioner's counsel had been given "a copy of that portion [of the
report] to which they are entitled," ibid., counsel made no request to
examine the full report or to be apprised of the contents of the
confidential portion. The trial judge did not comment on the contents of
the confidential portion. His findings do not indicate that there was
anything of special importance in the undisclosed portion, or that there
was any reason other than customary practice for not disclosing the entire
report to the parties. |
| [21] | On appeal to the Florida Supreme Court, petitioner argued that the
sentencing court had erred in considering the presentence investigation
report, including the confidential portion, in making the decision to
impose the death penalty. The per curiam opinion of the Supreme Court did
not specifically discuss this contention, but merely recited the trial
judge's finding, stated that the record had been carefully reviewed, and
concluded that the conviction and sentence should be affirmed.
The record on appeal, however, did not include the confidential portion of
the presentence report. |
| [22] | Justice Ervin and Justice Boyd dissented on several grounds. They
regarded the evidence as sufficient to establish a mitigating circumstance
as a matter of law, and also concluded that it was fundamental error for
the trial judge to rely on confidential matter not provided to the
parties. They stated, in part: S |
| [23] | "Additionally, it appears from the record that there was a
'confidential' portion of the PSI report made available to the trial judge
which was not provided to either Appellant or Appellee. In fact, it is
unclear from the record whether this Court has been provided the
'confidential' portion thereof for our review, a critical final step
between conviction and imposition of the death penalty - one of the
safeguards outlined in Dixon. [State v. Dixon, 283 So. 2d 1 (1973).] What
evidence or opinion was contained in the 'confidential' portion of the
report is purely conjectural and absolutely unknown to and therefore
unrebuttable by Appellant. We have no means of determining on review what
role such 'confidential' information played in the trial judge's sentence,
and thus I would overturn Appellant's death sentence on the basis of this
fundamental error alone." 313 So. 2d, at 678 (emphasis in
original).I |
| [24] | Petitioner's execution was stayed pending determination of the
constitutionality of the Florida capital-sentencing procedure. Following
the decision in Proffitt v. Florida, 428 U.S. 242,
holding that the Florida procedure, on its face, avoids the constitutional
deficiencies identified in Furman v. Georgia, 408 U.S. 238, the Court granted certiorari in this case, 428
U.S. 908, to consider the constitutionality of the trial
judge's use of a confidential presentence report in this capital case.*fn5
II |
| [25] | The State places its primary reliance on this Court's landmark
decision in Williams v. New York, 337 U.S. 241. In
that case, as in this, the trial judge rejected the jury's recommendation
of mercy and imposed the death sentence in reliance, at least in part, on
material contained in a report prepared by the court's probation
department. The New York Court of Appeals had affirmed the sentence,
rejecting the contention that it was a denial of due process to rely on
information supplied by witnesses whom the accused could neither confront
nor cross-examine. |
| [26] | This Court referred to appellant's claim as a "narrow contention,"
id., at 243, and characterized the case as one which S |
| [27] | "presents a serious and difficult question... relat[ing] to the rules
of evidence applicable to the manner in which a judge may obtain
information to guide him in the imposition of sentence upon an already
convicted defendant." Id., at 244.I |
| [28] | The conviction and sentence were affirmed, over the dissent of two
Justices. |
| [29] | Mr. Justice Black's opinion for the Court persuasively reasons why
material developed in a presentence investigation may be useful to a
sentencing judge, and why it may not be unfair
to a defendant to rely on such information even if it would not be
admissible in a normal adversary proceeding in open court. We consider the
relevance of that reasoning to this case in Part III of this opinion.
Preliminarily, however, we note two comments by Mr. Justice Black that
make it clear that the holding of Williams is not directly applicable to
this case. |
| [30] | It is first significant that in Williams the material facts concerning
the defendant's background which were contained in the presentence report
were described in detail by the trial judge in open court. Referring to
this material, Mr. Justice Black noted: S |
| [31] | " The accuracy of the statements made by the judge as to appellant's
background and past practices was not challenged by appellant or his
counsel, nor was the judge asked to disregard any of them or to afford
appellant a chance to refute or discredit any of them by cross-examination
or otherwise." Ibid.I |
| [32] | In contrast, in the case before us, the trial judge did not state on
the record the substance of any information in the confidential portion of
the presentence report that he might have considered material.*fn6
There was, accordingly, no similar opportunity for petitioner's counsel to
challenge the accuracy or materiality of any such
information. |
| [33] | It is also significant that Mr. Justice Black's opinion recognized
that the passage of time justifies a re-examination of capital-sentencing
procedures. As he pointed out: S |
| [34] | "This whole country has traveled far from the period in which the
death sentence was an automatic and commonplace result
of convictions - even for offenses today deemed trivial." Id., at
247-248.I |
| [35] | Since that sentence was written almost 30 years ago, this Court has
acknowledged its obligation to re-examine capital-sentencing procedures
against evolving standards of procedural fairness in a civilized
society.*fn7 |
| [36] | III |
| [37] | In 1949, when the Williams case was decided, no significant
constitutional difference between the death penalty and lesser punishments
for crime had been expressly recognized by this Court. At that time the
Court assumed that after a defendant was convicted of a capital offense,
like any other offense, a trial judge had complete discretion to impose
any sentence within the limits prescribed by the legislature.*fn8
As long as the judge stayed within those limits, his sentencing discretion
was essentially unreviewable and the possibility of error was remote, if,
indeed, it existed at all. In the intervening years there have been two
constitutional developments which require us to scrutinize a State's
capital-sentencing procedures more closely than was necessary in
1949. |
| [38] | First, five Members of the Court have now expressly recognized that
death is a different kind of punishment from any other which may be
imposed in this country. Gregg v. Georgia, 428 U.S. 153, 181-188 (opinion of STEWART, POWELL, and STEVENS, JJ.);
see id., at 231-241 (MARSHALL, J., dissenting); Furman v. Georgia, 408 U.S., at 286-291 (Brennan, J., concurring),
306-310 (STEWART, J., concurring); see id., at 314-371 (MARSHALL, J.,
concurring). 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. |
| [39] | Second, it is now clear that the sentencing process, as well as the
trial itself, must satisfy the requirements of the Due Process Clause.
Even though the defendant has no substantive right to a particular
sentence within the range authorized by statute, the sentencing is a
critical stage of the criminal proceeding at which he is entitled to the
effective assistance of counsel. Mempa v. Rhay, 389 U.S. 128; Specht v. Patterson, 386 U.S. 605.
The defendant has a legitimate interest in the character of the procedure
which leads to the imposition of sentence even if he may have no right to
object to a particular result of the sentencing process. See Witherspoon
v. Illinois, 391 U.S. 510, 521-523.*fn9 |
| [40] | In the light of these developments we consider the justifications
offered by the State for a capital-sentencing procedure which permits a
trial judge to impose the death sentence on the basis of confidential
information which is not disclosed to the defendant or his
counsel. |
| [41] | The State first argues that an assurance of confidentiality to
potential sources of information is essential to enable investigators to
obtain relevant but sensitive disclosures from persons unwilling to
comment publicly about a defendant's background
or character. The availability of such information, it is argued, provides
the person who prepares the report with greater detail on which to base a
sentencing recommendation and, in turn, provides the judge with a better
basis for his sentencing decision. But consideration must be given to the
quality, as well as the quantity, of the information on which the
sentencing judge may rely. Assurances of secrecy are conducive to the
transmission of confidences which may bear no closer relation to fact than
the average rumor or item of gossip, and may imply a pledge not to attempt
independent verification of the information received. The risk that some
of the information accepted in confidence may be erroneous, or may be
misinterpreted, by the investigator or by the sentencing judge, is
manifest. |
| [42] | If, as the State argues, it is important to use such information in
the sentencing process, we must assume that in some cases it will be
decisive in the judge's choice between a life sentence and a death
sentence. If it tends to tip the scales in favor of life, presumably the
information would be favorable and there would be no reason why it should
not be disclosed. On the other hand, if it is the basis for a death
sentence, the interest in reliability plainly outweighs the State's
interest in preserving the availability of comparable information in other
cases. |
| [43] | The State also suggests that full disclosure of the presentence report
will unnecessarily delay the proceeding. We think the likelihood of
significant delay is overstated because we must presume that reports
prepared by professional probation officers, as the Florida procedure
requires, are generally reliable.*fn10
In those cases in which the accuracy of a report is contested, the trial
judge can avoid delay by disregarding the
disputed material. Or if the disputed matter is of critical importance,
the time invested in ascertaining the truth would surely be well spent if
it makes the difference between life and death. |
| [44] | The State further urges that full disclosure of presentence reports,
which often include psychiatric and psychological evaluations, will
occasionally disrupt the process of rehabilitation. The argument, if
valid, would hardly justify withholding the report from defense counsel.
Moreover, whatever force that argument may have in non-capital cases, it
has absolutely no merit in a case in which the judge has decided to
sentence the defendant to death. Indeed, the extinction of all possibility
of rehabilitation is one of the aspects of the death sentence that makes
it different in kind from any other sentence a State may legitimately
impose. |
| [45] | Finally, Florida argues that trial judges can be trusted to exercise
their discretion in a responsible manner, even though they may base their
decisions on secret information. However acceptable that argument might
have been before Furman v. Georgia, it is now clearly foreclosed.*fn11
Moreover, the argument rests on the erroneous premise that the
participation of counsel is superfluous to the process of evaluating the
relevance and significance of aggravating and mitigating facts. Our belief
that debate between adversaries is often essential to the truth-seeking
function of trials requires us also to recognize the importance of giving
counsel an opportunity to comment on facts which may influence the
sentencing decision in capital cases. |
| [46] | Even if it were permissible to withhold a portion of the report from a
defendant, and even from defense counsel, pursuant to an express finding
of good cause for nondisclosure, it would
nevertheless be necessary to make the full report a part of the record to
be reviewed on appeal. Since the State must administer its
capital-sentencing procedures with an even hand, see Proffitt v. Florida, 428 U.S., at 250-253, it is important that the record
on appeal disclose to the reviewing court the considerations which
motivated the death sentence in every case in which it is imposed. Without
full disclosure of the basis for the death sentence, the Florida
capital-sentencing procedure would be subject to the defects which
resulted in the holding of unconstitutionality in Furman v. Georgia.*fn12
In this particular case, the only explanation for the lack of disclosure
is the failure of defense counsel to request access to the full report.
That failure cannot justify the submission of a less complete record to
the reviewing court than the record on which the trial judge based his
decision to sentence petitioner to death. |
| [47] | Nor do we regard this omission by counsel as an effective waiver of
the constitutional error in the record. There are five reasons for this
conclusion. First, the State does not urge that the objection has been
waived. Second, the Florida Supreme Court has held that it has a duty to
consider "the total record," Swan v. State, 322 So. 2d 485, 489 (1975),
when it reviews a death sentence. Third, since two members of that court
expressly considered this point on the appeal in this case, we presume
that the entire court passed on the question. Cf. Boykin v. Alabama, 395 U.S. 238, 240-242, and n. 3. Fourth, there is no
basis for presuming that the defendant himself made a knowing and
intelligent waiver, or that counsel could possibly have made a tactical
decision not to examine the full report. Cf. Estelle v. Williams, 425 U.S. 501, 507-508. Fifth,
since the judge found, in disagreement with the jury, that the evidence
did not establish any mitigating circumstance, and since the presentence
report was the only item considered by the judge but not by the jury, the
full review of the factual basis for the judge's rejection of the advisory
verdict is plainly required. For if the jury, rather than the judge,
correctly assessed the petitioner's veracity, the death sentence rests on
an erroneous factual predicate. |
| [48] | We conclude that petitioner was denied due process of law when the
death sentence was imposed, at least in part, on the basis of information
which he had no opportunity to deny or explain. |
| [49] | IV |
| [50] | There remains only the question of what disposition is now proper.
Petitioner's conviction, of course, is not tainted by the error in the
sentencing procedure. The State argues that we should merely remand the
case to the Florida Supreme Court with directions to have the entire
presentence report made a part of the record to enable that court to
complete its reviewing function. That procedure, however, could not fully
correct the error. For it is possible that full disclosure, followed by
explanation or argument by defense counsel, would have caused the trial
judge to accept the jury's advisory verdict. Accordingly, the death
sentence is vacated, and the case is remanded to the Florida Supreme Court
with directions to order further proceedings at the trial court level not
inconsistent with this opinion. |
| [51] | Vacated and remanded. |
| [52] | THE CHIEF JUSTICE concurs in the judgment. |
| [53] | MR. JUSTICE WHITE, concurring in the judgment. |
| [54] | In Woodson v. North Carolina, 428 U.S. 280
(1976), the Court addressed the question whether the mandatory death
penalty imposed under the statute involved in that case was consistent
with the Eighth Amendment's prohibition against cruel and unusual
punishments. The plurality opinion stated: S |
| [55] | "The issue, like that explored in Furman, involves the procedure
employed by the State to select persons for the unique and irreversible
penalty of death." Id., at 287. (Emphasis added.)I |
| [56] | In holding that the failure to conduct the sort of post-trial
sentencing proceeding which Florida law requires, and which was conducted
in this case, rendered North Carolina's mandatory death penalty statute
unconstitutional, the plurality said: S |
| [57] | "[W]e believe that in capital cases the fundamental respect for
humanity underlying the Eighth Amendment, see Trop v. Dulles,
356 U.S. [86,] 100 (plurality opinion), requires
consideration of the character and record of the individual offender and
the circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of
death. |
| [58] | "This conclusion rests squarely on the predicate that the penalty of
death is qualitatively different from a sentence of imprisonment, however
long. 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." Id., at 304-305. (Emphasis
added.)I |
| [59] | The issue in this case, like the issue in Woodson v. North Carolina,
supra, "involves the procedure" employed by the State in selecting persons
who will receive the death penalty. Here the sentencing judge indicated
that he selected petitioner Gardner for the death penalty in
part because of information contained in a presentence report which
information was not disclosed
to petitioner or to his counsel and to which petitioner had no opportunity
to respond. A procedure for selecting people for the death penalty which
permits consideration of such secret information relevant to the
"character and record of the individual offender," id., at 304, fails to
meet the "need for reliability in the determination that death is the
appropriate punishment" which the Court indicated was required in Woodson,
supra, at 305. This conclusion stems solely from the Eighth Amendment's
ban on cruel and unusual punishments on which the Woodson decision
expressly rested, and my conclusion is limited, as was Woodson, to cases
in which the death penalty is imposed. I thus see no reason to address in
this case the possible application to sentencing proceedings - in death or
other cases - of the Due Process Clause, other than as the vehicle by
which the strictures of the Eighth Amendment are triggered in this case.
For these reasons, I do not join the plurality opinion but concur in the
judgment. |
| [60] | MR. JUSTICE BLACKMUN, concurring in the judgment. |
| [61] | Given the judgments of the Court in Woodson v. North Carolina, 428 U.S. 280 (1976), and in Roberts v. Louisiana, 428 U.S. 325 (1976), n.* each attained by a plurality
opinion of JUSTICES STEWART, POWELL, and STEVENS, in combination with
respective concurrences in the judgment by JUSTICES BRENNAN and MARSHALL,
I concur in the judgment the Court reaches in the present case. n.* See
also Proffitt v. Florida, 428 U.S. 242 (1976); Jurek
v. Texas, 428 U.S. 262 (1976); and Gregg v. Georgia, 428 U.S. 153 (1976). |
| [62] | MR. JUSTICE BRENNAN. |
| [63] | I agree for the reasons stated in the plurality opinion that the Due
Process Clause of the Fourteenth Amendment is violated when a defendant
facing a death sentence is not informed of the contents of a presentence
investigation report made to the sentencing judge. However, I adhere to my
view
that the death penalty is in all circumstances cruel and unusual
punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v.
Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J.,
dissenting). I therefore would vacate the death sentence, and I dissent
from the Court's judgment insofar as it remands for further proceedings
that could lead to its imposition. |
| [64] | MR. JUSTICE MARSHALL dissenting. |
| [65] | Last Term, this Court carefully scrutinized the Florida procedures for
imposing the death penalty and concluded that there were sufficient
safeguards to insure that the death sentence would not be "wantonly" and
"freakishly" imposed. Proffitt v. Florida, 428 U.S. 242 (1976). This case, however, belies that hope. While I
continue to believe that the death penalty is unconstitutional in all
circumstances, see Furman v. Georgia, 408 U.S. 238,
314 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428
U.S. 153, 231 (1976) (MARSHALL, J., dissenting), and therefore
would remand this case for resentencing to a term of life, nevertheless,
now that Florida may legally take a life, we must insist that it be in
accordance with the standards enunciated by this Court. In this case I am
appalled at the extent to which Florida has deviated from the procedures
upon which this Court expressly relied. It is not simply that the trial
judge, in overriding the jury's recommendation of life imprisonment,
relied on undisclosed portions of the presentence report. Nor is it merely
that the Florida Supreme Court affirmed the sentence without discussing
the omission and without concern that it did not even have the entire
report before it. Obviously that alone is enough to deny due process and
require that the death sentence be vacated as the Court now holds. But the
blatant disregard exhibited by the courts below for the standards devised
to regulated imposition of the death penalty calls into question the very
basis for this Court's approval of that system in Proffitt. In
Proffitt v. Florida, supra, this Court gave its approval to the new death
penalty statute of Florida, but very carefully spelled out its reasons for
doing so. The joint opinion of JUSTICES STEWART, POWELL, and STEVENS
(hereafter joint opinion) noted in particular that "[t]he Florida Supreme
Court has stated... that '[i]n order to sustain a sentence of death
following a jury recommendation of life, the facts suggesting a sentence
of death should be so clear and convincing that virtually no reasonable
person could differ,' Tedder v. State, 322 So. 2d 908, 910 (1975)," 428 U.S., at 249, and that the Florida "statute
requires that if the trial court imposes a sentence of death, 'it shall
set forth in writing its findings upon which the sentence of death is
based as to the facts: (a) [t]hat sufficient [statutory] aggravating
circumstances exist... and (b) [t]hat there are insufficient [statutory]
mitigating circumstances... to outweigh the aggravating circumstances.'
[Fla. Stat. Ann.] § 921.141 (3) (Supp. 1976-1977)." Id., at 250. In
addition, the joint opinion, concerned that Florida provided no "specific
form of review," found assurance in the fact that S |
| [66] | "[s]ince, however, the trial judge must justify the imposition of
death sentence with written findings, meaningful appellate review of each
such sentence is made possible, and the Supreme Court of Florida, like its
Georgia counterpart, considers its function to be to '[guarantee] that the
[aggravating and mitigating] reasons present in one case will reach a
similar result to that reached under similar circumstances in another
case.... If a defendant is sentenced to die, this Court can review that
case in light of the other decisions and determine whether or not the
punishment is too great.' State v. Dixon, 283 So. 2d 1, 10 (1973)." Id.,
at 251. (Emphasis added.)I |
| [67] | After studying the performance of the Florida Supreme Court in
reviewing death cases, this Court satisfied itself that these guarantees
were genuine and that "the Florida court has undertaken responsibly
to perform its function of death sentence review with a maximum of
rationality and consistency," id., at 258-259, and "has in effect adopted
the type of proportionality review mandated by the Georgia statute" upheld
in Gregg v. Georgia, supra. 428 U.S., at 259. The
joint opinion placed great emphasis on this factor, reasoning that
"because of its statewide jurisdiction, [the Florida Supreme Court] can
assure consistency, fairness, and rationality in the evenhanded operation
of the state law." Id., at 259-260. |
| [68] | In the present case, however, the Florida Supreme Court engaged in
precisely the "cursory or rubber-stamp review" that the joint opinion in
Proffitt trusted would not occur. Id., at 259. The jury, after considering
the evidence, recommended a life sentence: S |
| [69] | "We, the Jury, have heard evidence, under the sentencing procedure in
the above cause, as to whether aggravating circumstances which were so
defined in the Court's charge, existed in the capital offense here
involved, and whether sufficient mitigating circumstances are defined in
the Court's charge to outweigh such aggravating circumstances, do find and
advise that the mitigating circumstances do outweigh the aggravating
circumstances. |
| [70] | "We therefore advise the Court that a life sentence should be imposed
herein upon the defendant by the Court." App.I 131. |
| [71] | The judge, however, ignored the jury's findings. His statutorily
required written findings consisted of: S |
| [72] | "[T]he undersigned concludes and determines that aggravating
circumstances exist, to-wit: The capital felony was especially heinous,
atrocious or cruel; and that such aggravating circumstances outweighs
[sic] the mitigating circumstance, to-wit: none; and based upon the
records of such trial and sentencing proceedings makes the following
findings of facts, to-wit: "1.
That the victim died as a result of especially heinous, atrocious and
cruel acts committed by the defendant, the nature and extent of which are
reflected by the testimony of Dr. William H. Shutze, District Medical
Examiner of the Fifth Judicial Circuit of the State of Florida, as
follows: [followed by a list of 11 injuries to the deceased]." Id., at
138-139.I |
| [73] | The Florida Supreme Court affirmed with two justices dissenting. The
per curiam consisted of a statement of the facts of the murder, a verbatim
copy of the trial judge's "findings," a conclusion that no new trial was
warranted, and the following "analysis": S |
| [74] | "Upon considering al the mitigating and aggravating circumstances and
careful review of the entire record in the cause, the trial court imposed
the death penalty for the commission of the afore-described atrocious and
heinous crime. |
| [75] | "Accordingly, the judgment and sentence of the Circuit Court are
hereby affirmed. |
| [76] | "It is so ordered." 313 So. 2d 675 (1975).I |
| [77] | From this quotation, which includes the entire legal analysis of the
opinion, it is apparent that the State Supreme Court undertook none of the
analysis it had previously proclaimed to be its duty. The opinion does not
say that the Supreme Court evaluated the propriety of the death sentence.
It merely says the trial judge did so. Despite its professed obligation to
do so, the Supreme Court thus failed "to determine independently" whether
death was the appropriate penalty. The Supreme Court also appears to have
done nothing "to guarantee" consistency with other death sentences. Its
opinion makes no comparison with the facts in other similar cases. Nor did
it consider whether the trial judge was correct in overriding the jury's
recommendation. There was no attempt to ascertain whether the evidence
sustaining death was "so clear and convincing that virtually no reasonable
person could differ," supra, at 366. Indeed, it is impossible for me to
believe that that standard can be met in this case. |
| [78] | As the plurality notes, ante, at 352, there are two mitigating factors
that could apply to this case and apparently were found applicable by the
jury: "The capital felony was committed while the defendant was under the
influence of extreme mental or emotional disturbance" and "[t]he capacity
of the defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was substantially
impaired." Fla. Stat. Ann. §§ 921.141 (6)(b) and (f) (Supp. 1976). The
purpose of these two categories is, as Justice Ervin observed in dissent
below, "'to protect that person who, while legally answerable for his
actions, may be deserving of some mitigation of sentence because of his
mental state.' [ State v. Dixon, 283 So. 2d 1, 10 (1973)]." 313 So. 2d, at
679. |
| [79] | I agree with Justice Ervin that petitioner is such a person. It is
undisputed that he had been drinking virtually the entire day and night
prior to the killing. Both court-appointed psychiatrists found that
petitioner was an alcoholic and that "had he not been under the influence
of alcohol at the time of the alleged crime, he would have been competent,
knowing right from wrong and being capable of adhering to the right." App.
11, 19. Furthermore, his actions after the murder - falling asleep with
his wife's dead body, seeking his mother-in-law's help the next morning
because his wife did not appear to be breathing properly, weeping when he
realized she might be dead, and waiting for the police to come with no
attempt to escape - are consistent with his being temporarily mentally
impaired at the time of the crime. In light of these facts, it is not
surprising that the jury found that the mitigating circumstances
outweighed the aggravating. |
| [80] | Clearly, this is not a case where the evidence suggesting death is "so
clear and convincing that virtually no reasonable person could differ."
Had the Florida Supreme Court examined the
evidence in the manner this Court trusted it would, I have no doubt that
the jury recommendation of life imprisonment would have been reinstated.
As Justice Ervin observed: S |
| [81] | "This was a crime of passion in a marital setting in which the
excessive use of alcohol was a material factor resulting in the homicide.
As I read our statutes, this type of crime does not merit the death
penalty because the discretion exercised to impose that penalty here
extends beyond the discretion the statutes repose in governmental
officials for such purpose. I do not believe that the statutes contemplate
that a crime of this nature is intended to be included in the heinous
category warranting the death penalty. A drunken spree in which one of the
spouses is killed traditionally has not resulted in the death penalty in
this state." 313 So. 2d, at 679. |
| [82] | In Proffitt, a majority of this Court was led to believe that Florida
had established capital-sentencing procedures that would "assure that the
death penalty will not be imposed in an arbitrary or capricious manner." 428 U.S., at 253. This case belies that promise and
suggests the need to reconsider that assessment.*fn*
MR.
JUSTICE REHNQUIST, dissenting. |
| [83] | Had I joined the plurality opinion in last Term's Woodson v. North
Carolina, 428 U.S. 280 (1976), I would join the
concurring opinion of my Brother WHITE in this case. But if capital
punishment is not cruel and unusual under the Eighth and Fourteenth
Amendments, as the Court held in that case, the use of particular
sentencing procedures, never previously held unfair under the Due Process
Clause, in a case where the death sentence is imposed cannot convert that
sentence into a cruel and unusual punishment. The prohibition of the
Eighth Amendment relates to the character of the punishment, and not to
the process by which it is imposed. I would therefore affirm the judgment
of the Supreme Court of Florida. |
|
| |
| Opinion Footnotes | |
|
| |
| [84] | *fn1
Fla. Stat. Ann. § 921.141 (Supp. 1976). This Court upheld the
constitutionality of the statute in Proffitt v. Florida, 428
U.S. 242. |
| [85] | *fn2
Fla. Stat. Ann. § 921.141 (5)(h) (Supp. 1976). |
| [86] | *fn3
The statute provides, in part:
"(6) Mitigating circumstances. - Mitigating circumstances shall be the
following: . . . . . "(b) The capital felony was committed while the
defendant was under the influence of extreme mental or emotional
disturbance. . . . . . "(f) The capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired." Fla. Stat. Ann. §§
921.141(6)(b), (f) (Supp. 1976). |
| [87] | *fn4
Florida Rules Crim. Proc. 3.710-3.713 authorize the presentence
investigation. The Rules apply to all cases in which the trial court has
discretion in sentencing, and make no reference to the special
capital-sentencing procedure at issue here. |
| [88] | *fn5
In an appendix to its brief in this Court, the State has printed a copy of
the confidential portion of the presentence report. Petitioner contests
its authenticity. He also argues, alternatively, that we should not review
its contents because it was not made a part of the certified record in the
state courts or in this Court; that consideration of the contents of the
report in the first instance in this Court flouts the procedural
regularity mandated for capital sentencing by Furman v. Georgia, 408 U.S. 238, and Proffitt v. Florida; or that, not
having had an opportunity to present evidence to rebut the confidential
portion of the report, it would be unfair and improper to require him to
address its contents in this Court. Reply Brief for Petitioner 2-3.
It is not a function of this Court to evaluate in the first instance
the possible prejudicial impact of facts and opinions appearing in a
presentence report. We therefore do not consider the contents of the
appendix to the State's brief. |
| [89] | *fn6
In fact, the only reference in the record to the confidential portion was
the inference to be drawn from the ambiguous mention of the "'portion...
to which they are entitled,'" supra, at 353, in the judge's written
findings of fact issued on the day sentence was announced. |
| [90] | *fn7
Gregg v. Georgia, 428 U.S. 153, 171-173, 179-181;
Furman v. Georgia, supra, at 299-300 (BRENNAN, J., concurring); McGautha
v. California, 402 U.S. 183, 197-203; Witherspoon v.
Illinois, 391 U.S. 510, 519 n. 15. |
| [91] | *fn8
See Williams v. New York, 337 U.S. 241,
251-252. |
| [92] | *fn9
The fact that due process applies does not, of course, implicate the
entire panoply of criminal trial procedural rights.
"Once it is determined that due process applies, the question remains
what process is due. It has been said so often by this Court and others as
not to require citation of authority that due process is flexible and
calls for such procedural protections as the particular situation
demands....Its flexibility is in its scope once it has been determined
that some process is due; it is a recognition that not all situations
calling for procedural safeguards call for the same kind of procedure."
Morrissey v. Brewer, 408 U.S. 471,
481. |
| [93] | *fn10
Our presumption that the reports are normally reliable is, of course, not
inconsistent with our concern about the possibility that critical
unverified information may be inaccurate and determinative in a particular
case. |
| [94] | *fn11
Furman v. Georgia, 408 U.S., at 313-314 (WHITE, J.,
concurring). This argument is inconsistent with the basis upon which the
Florida capital-sentencing procedure was upheld, Proffitt v. Florida, 428 U.S., at 254. |
| [95] | *fn12
The Supreme Court of Florida decided petitioner's case before our decision
in Proffitt v. Florida, supra, and before its own consideration of
Proffitt, 315 So. 2d 461 (1975), or of Tedder v. State, 322 So. 2d 908
(1975). Therefore, we cannot join MR. JUSTICE MARSHALL's criticism of the
Florida courts for their failure to follow the teaching of those
cases. |
|
| |
| Dissent Footnotes | |
|
| |
| [96] | *fn*
The plurality responds, ante, at 361 n. 12, that it cannot criticize the
Florida courts because the decision in petitioner's case preceded both our
decision in Proffitt and the Florida Supreme Court's decision in Proffitt
and Tedder. It conveniently ignores the fact that petitioner's case came
after several key Florida death penalty cases, most notably State v.
Dixon, 283 So. 2d 1 (1973), in which the Florida Supreme Court
"guaranteed" that its review would insure similar results in similar
cases. Proffitt v. Florida, 428 U.S. 242, 251 (1976),
quoting State v. Dixon, supra, at 10.
More significantly, however, the plurality does not so much as question
the procedure followed here and does nothing to insure that Florida will
not again condemn this man to die in blatant disregard of its own rules.
Compliance with Proffitt requires that on remand the trial judge give full
consideration to the mitigating circumstances in the case and, if he again
rejects the jury's recommendation of life imprisonment, his reasons "'be
so clear and convincing that virtually no reasonable person could
differ.'" 428 U.S., at 249. On review, the Florida
Supreme Court must evaluate the facts itself and perform the comparative
analysis it failed to do previously. It may be that my Brothers in the
majority believe these requirements to be so obvious as not to need
mention. Nevertheless, where a man's life is at stake, such blind faith is
just not enough even after the decision in
Proffitt. |