On petition for writ of certiorari to the Supreme Court of
Florida.
The petition for writ of certiorari is denied.
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, 2971, 49 L. Ed. 2d 859 (1976), I would grant
certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting.
As I have consistently stated, I believe that a decision to
impose the death penalty is always cruel and unusual punishment
forbidden by the Eighth and Fourteenth Amendments. See Gregg v.
Georgia,
428 U.S.
153, 231, 2971, 2973, 904, 907 (1976). Thus, I would grant
certiorari in this case and vacate the judgment
Page 454 U.S.
1041 , 1042
insofar as it leaves undisturbed the death sentence. I would
also grant certiorari on an additional ground. Petitioner argues
that the death penalty has been arbitrarily and capriciously
imposed in this case, because the trial judge rejected the jury's
recommendation that he be sentenced to life imprisonment. According
to petitioner, the jury should not have been overruled, since its
recommendation was not unreasonable. In my view, there is
substantial merit to this claim.
I
The Florida capital punishment statute, Fla.Stat. 921.141
(1979), which this Court approved in Proffitt v. Florida,
428 U.S. 242 (1976),
establishes a three-level review system. After a defendant is found
guilty of a capital offense, an evidentiary hearing is held before
the judge and the jury to determine the sentence. At the conclusion
of the hearing, the jury considers whether "sufficient mitigating
circumstances exist which outweigh the aggravating circumstances
found to exist," and based on these considerations, "whether the
defendant should be sentenced to life imprisonment or death." 921.
141(2)(b) and (c).
The jury's verdict is advisory only; the actual sentence is
imposed by the trial judge after he conducts his own review of the
aggravating and mitigating circumstances. However, the Florida
Supreme Court
395 So. 2d
1145 has stated that the jury recommendation is entitled to
substantial weight. "In 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). Accord, Thompson v. State,
328 So. 2d 1,
5 (Fla.1976). See also Proffitt v. Florida, supra. Judges are given
the power to override jury verdicts only because of the possibility
that in isolated cases juries will unreasonably reject death. See
Chambers v. State,
339 So. 2d
204, 208-209 (Fla.1976).
Page 454 U.S.
1041 , 1043
The statute provides for automatic review by the Florida Supreme
Court of all cases in which a death penalty has been imposed.
921.141(4 ). The statute itself does not require any specific form
of review. The court has stated, however, that its function is to
ensure that similar results are reached in similar cases. "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 (Fla.1973).
If Florida is to use a system of advisory verdicts, it must
administer that system with scrupulous fairness. Having stated that
it will reject only those recommendations that are unreasonable, it
must conscientiously adhere to that standard. The trial judge or
the Florida Supreme Court may not allow a reasonable jury
recommendation to stand in some cases, and substitute their own
judgment in others. Where matters of life and death are concerned,
such a lack of predictability cannot be tolerated. This Court has
repeatedly emphasized the importance of consistency in capital
cases. See, e. g., Gardner v. Florida,
430 U.S. 349, 357-358,
1204 (1977); Woodson v. North Carolina,
428 U.S. 280, 302-303,
2990 ( 1976); Jurek v. Texas,
428 U.S.
262, 274, 2957 (1976); Proffitt v. Florida, supra, 428 U.S., at
259-260-2970; Gregg v. Georgia, supra, at 188-189; Furman v.
Georgia,
408 U.S.
238, 309-310, 2762-2763, 33 L. Ed. 2d 346 (1972).
II
My review of the record in this case leads me to believe that
the trial judge may have improperly substituted his own judgment
for that of the jury in deciding to impose the death penalty.
Petitioner was tried for the murder of a 67-year-old woman. After
the close of the evidence, the jury returned a verdict of guilty,
but recommended a life sentence. The trial judge rejected this
recommendation and entered a judgment calling for the death
sentence. He found three statutory aggravating circumstances.
First, because peti-
Page 454 U.S.
1041 , 1044
tioner had recently pleaded guilty to an unrelated assault
charge, he was a convicted felon. See Fla.Stat. 921.141(5)(b)
(1979). Second, the murder was "especially heinous, atrocious, or
cruel." 921.141(5)(h). Third, the murder took place during the
commission of a rape. 921.141(5)( d). The trial judge stated that
these aggravating circumstances outweighed any mitigating
circumstances. He rejected evidence submitted by petitioner to show
that at the time of the crime he was "under the influence of
extreme mental or emotional disturbance," a statutory mitigating
circumstance. 921.141(6)(b).
The Florida Supreme Court affirmed the trial judge's decision to
override the jury's advisory verdict. McCrae (sic) v. State,
395 So. 2d
1145 (1980). It agreed that the guilty plea to the unrelated
felony charge could be treated as a felony conviction, and thus
constituted an aggravating circumstance under the death penalty
statute. It also agreed that the crime was especially heinous,
atrocious, or cruel, and that it had taken place during the
commission of a rape. The Supreme Court reasoned that the jury must
have decided to recommend life imprisonment because it believed
that petitioner was under the influence of extreme mental or
emotional disturbance at the time the crimes were committed. Like
the trial judge, however, the State Supreme Court concluded that
the evidence submitted by petitioner could not support a conclusion
that this mitigating circumstance actually existed.
I am extremely troubled by the trial judge's decision to
override the jury's advisory verdict, and by the Florida Supreme
Court's affirmance of that decision. A reasonable jury
unquestionably could have concluded that the mitigating
circumstances outweighed the aggravating circumstances. Petitioner
offered substantial evidence in support of his claim that he acted
under the influence of extreme mental or emotional disturbance. A
psychiatrist, Dr. Clarence Schlit, tes-
Page 454 U.S.
1041 , 1045
tified that petitioner was subject to attacks when under
emotional stress that prevented him from exercising a normal degree
of restraint. He further stated that although petitioner was not
insane, he suffered from a chronic schizophrenic illness. Dr.
Schlit's testimony was confirmed by two court-appointed
psychiatrists who examined petitioner to determine whether he was
competent to stand trial. Dr. Mordecai Haber observed that
petitioner suffered from a disorder that contributed to an
explosive personality. He concluded that although petitioner was
competent, he was too dangerous to be at liberty. Dr. Thomas
Haagland found that although petitioner had control of himself
while sober, he released "an underlying epileptic furor" whenever
he was intoxicated. 395 So.2d, at 1147-1148.
Other evidence in the record lends support to petitioner's claim
that he was emotionally disturbed at the time of the murder.
Petitioner was confined in a psychiatric ward while in the United
States Army. Record 883. Prior to trial he made at least three
suicide attempts. Id., at 883, 884, 1005. He frequently hears
voices, and regards this as normal. Id., at 1006. He suffers from
"organic brain syndrome with epilepsy." Id., at 1022. These
findings were confirmed by an electroencephalogram. Ibid.
The trial judge and the Florida Supreme Court unfairly
discounted this evidence. They both emphasized that Dr. Schlit was
unwilling to testify that it was a "medical certainty" that
petitioner acted under the influence of extreme mental disturbance.
See 395 So.2d, at 1148. This does not mean, however, that it was
unreasonable for the jury to conclude, on the basis of all the
evidence, that petitioner was emotionally disturbed at the time of
the murder.
I also think it quite possible that the jury was not convinced
that this was an "especially heinous, atrocious, or cruel" murder
within the meaning of the death penalty statute. It is true that
there was evidence suggesting that the
Page 454 U.S.
1041 , 1046
victim was beaten before she died. However, it was not possible
to determine how quickly the victim died, or how much she suffered.
A reasonable jury could have found that the murder was not heinous.
The Florida Supreme Court has stated that the "heinous, atrocious,
or cruel" standard applies only to those murders that are
"extremely wicked" and " shockingly evil," or "designed to inflict
a high degree of pain with utter indifference to, or even enjoyment
of, the suffering of others." State v. Dixon, 283 So.2d, at 9.
Since a jury could reasonably have concluded that the mitigating
circumstances outweighed the aggravating circumstances, the trial
judge improperly rejected its recommendation. He substituted his
own judgment concerning the proper sentence, in disregard of the
standards set forth by the Florida Supreme Court. Under the
circumstances, the imposition of the death sentence was arbitrary
and capricious.
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