On petition for writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit.
The petition for a writ of certiorari is denied.
Page 474 U.S.
1073 , 1074
Justice BRENNAN, dissenting.
Adhering 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, 2950, 49 L. Ed. 2d 859 (1976), I would grant
certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting.
Because the Court's refusal to grant certiorari in this case
allows the State of Florida to proceed with the execution of a
defendant whose conviction may well rest upon a ground that the
Florida Supreme Court has held invalid, I must dissent from the
denial here.
Since Stromberg v. California,
283 U.S. 359 (1931), this
Court has recognized that "a general verdict must be set aside if
the jury was instructed that it could rely on any of two or more
independent grounds, and one of those grounds is insufficient,
because the verdict may have rested exclusively on the insufficient
ground." Zant v. Stephens,
462 U.S.
862, 881, 2745 (1983). See Chiarella v. United States,
445 U.S. 222, 237, n. 21,
1119, n. 21 (1980); Leary v. United States,
395 U.S. 6, 31-32, 1545-46
(1969). Although in Stromberg, the Court was concerned that the
jury might have held the defendant criminally liable for conduct
protected by the First Amendment, the rationale of that decision
should not be limited to cases in which a general verdict may be
based upon a ground repugnant to the Federal Constitution. Where a
jury has been instructed that it may convict a defendant upon an
invalid ground, the reason for that invalidity is not important.
See Chiarella v. United States, supra, 445 U.S., at 237, n. 21, n.
21 ("We may not uphold a criminal conviction if it is impossible to
ascertain whether the defendant has been punished for noncriminal
conduct"). What offends the Due Process Clause is the possibility
that the jury may have condemned the defendant for reasons that as
a matter of law-be it statutory or constitutional-cannot support
the verdict. The existence of such a possibility is all too real in
this case and demands that petitioner's conviction be set
aside.
Petitioner was arrested and charged with the murder of an
8-year-old girl. In statements to the police, he admitted removing
the victim's clothes, using rope to tie her hands, and placing
plastic bags over her body. He said he thought he had tried to have
sexual relations with the victim but either could not do it or
could
Page 474 U.S.
1073 , 1075
not bring himself to do it.
764 F.2d
1356, 1358 (CA11 1985). The indictment brought against
petitioner alleged that he had "murdered the victim, unlawfully,
from a premeditated design by strangling." Adams v. State,
412 So. 2d
850, 852 (Fla.1982). The circumstances of the crime might
easily have led jurors to believe that even if petitioner had not
premeditated the homicide, he nevertheless had killed the girl in
the course of an attempted rape. Under state law, such a
felony-murder theory was not foreclosed by the indictment, ibid.,
and it does not appear that the prosecution ever indicated its
intention to rely solely upon a theory of premeditated murder.
The trial court's instruction made clear the availability of
either felony murder or premeditated murder as a basis for a
first-degree murder conviction. At the close of trial, the court
instructed the jury that it would not have to find that petitioner
had a "premeditated design to kill" in order to convict him of
first-degree murder. The court explained:
"The killing of a human being in committing, or in attempting to
commit any arson, rape, robbery, burglary, abominable and
detestable crime against nature or kidnapping is murder in the
first degree, even though there is no premeditated design or intent
to kill.
"If a person kills another while he is trying to do or commit
any arson, rape, robbery, burglary, abominable and detestable crime
against nature or kidnapping, or while escaping from the immediate
scene of such crime the killing is in the perpetration of or in the
attempt to perpetrate such arson, rape, robbery, burglary,
abominable and detestable crime against nature or kidnapping and is
murder in the first degree." Ibid.
The jury proceeded to convict petitioner of first-degree murder.
Long before petitioner's trial, however, the Florida Supreme Court
had held the statutory term "crime against nature" too vague to
sustain a conviction. Franklin v. State,
257 So. 2d
21 (Fla.1971). Indeed, in affirming petitioner's conviction,
the Florida Supreme Court admitted that the instruction here
"included references to two crimes which do not exist, to wit: rape
and an abominable and detestable crime against nature." 412 So.2d,
at 852. Were it possible, therefore, that in reaching their general
verdict the jury relied on a felony-murder theory based upon
the
Page 474 U.S.
1073 , 1076
sexual aspects of the killing, the conviction unquestionably
would have to be overturned under Stromberg.
Finding no such possibility, the Court of Appeals affirmed the
District Court's refusal to grant petitioner's habeas petition. The
Court of Appeals concluded:
"The trial court's reference to the capital felony of killing
during the commission of or an attempt to commit rape, a crime
against nature, or kidnapping as murder in the first degree appears
early in the instructions as part of what were, in essence,
statutory definitions. The actual and controlling charge came later
in the instructions, when the trial court told the jurors that, if
the elements of homicide were found, their next task would be to
determine its degree. At this point, premeditated murder was the
only killing stated to constitute murder in the first degree.
Therefore, the jurors were actually instructed to consider only
premeditated murder as murder in the first degree." 764 F.2d, at
1362-1363.
I cannot accept the Court of Appeals' distinction between the "
statutory" section of the trial court's instructions and the later,
" controlling" part. Although the trial court's focus on
premeditated murder came in the context of its "summary" of the
entire charge, the jury can hardly be presumed to have forgotten
the lengthy explanation of first- degree murder that had come
before. The sexual overtones of the crime make it impossible to
eliminate the possibility that the jury seized upon the references
to rape and "crime against nature" and made them dispositive here.
So long as such a possibility exists, Stromberg requires that
petitioner's conviction be set aside.
This Court's refusal to grant certiorari in Dobbert v.
Wainwright,
468 U.S.
1231 (1984), a case raising a Stromberg claim very similar to
the one here, might have been attributed to the majority's belief
that the constitutional claim there had not been properly
preserved. Id., at 1244-1246-44 (MARSHALL, J., dissenting from
denial of stay of execution and of certiorari). No such procedural
bar exists here, and the Court's refusal to consider petitioner's
claims is even less excusable. I dissent.
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