On petition for writ of certiorari to the Supreme Court of
Florida.
The motion of Florida Public Defenders Association, Inc. for
leave to file a brief as amicus curiae is granted. The petition for
writ of certiorari is denied.
Justice BRENNAN, dissenting. Adhering to my views 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 from denial of certiorari. I
continue to adhere to my view that the death penalty is
unconstitutional under all circumstances. I would therefore grant
certiorari and vacate the death sentence on this basis alone.
However, even if I accepted the prevailing view that the death
penalty can constitutionally be imposed under certain
circumstances, I would grant certiorari in this case to consider
whether a trial judge may reject a jury's recommendation of life
imprisonment and impose the death sentence based in part on a
different jury's recommendation that the defendant's accomplice be
sentenced to death. Petitioner Ernest Lee Miller and his
step-brother, William Riley Jent, were indicted for first degree
murder. Following trials before the same judge but before separate
juries, both defendants were found guilty. The trials were followed
by hearings at which each jury was directed to consider "[w]hether
sufficient mitigating circumstances exist . . . which outweigh the
aggravating circumstances found to exist; and . . . [b]ased on
these considerations the defendant should be sentenced to life [
imprisonment] or death." Fla.Stat.Ann. 921.141(2)(b) and (c). The
jury that heard petitioner's case recommended life imprisonment,
but in Jent's case the jury recommended a death sentence. Under the
Florida capital sentencing procedure, the jury's sentencing
decision is only advisory; the actual sentence is
Page 459 U.S.
1158 , 1159
determined by the trial judge. Here the judge who conducted both
trials sentenced both petitioner and his accomplice Jent. In the
case of Jent, the judge accepted the jury's recommendation and
imposed a death sentence.
In the case of petitioner, the judge was faced with a jury
recommendation of life imprisonment. Under Florida law, a
sentencing judge can reject such a recommendation only if " 'the
facts suggesting a sentence of death [are] so clear and convincing
that virtually no reasonable person could differ.' " Proffitt v.
Florida,
428 U.S.
242, 249, 2965 (1976), quoting Tedder v. State,
322 So. 2d
908, 910 (1975). In deciding to impose the death sentence
despite the jury's recommendation, the judge relied heavily on the
fact that in Jent's case the jury recommended a death sentence:
"The United States Supreme Court has determined that if the
death penalty is to be imposed by the states, the United States
Constitution demands that it be imposed with regularity,
rationality and consistency.
"The jury for the defendant Jent has recommended death and this
court finds that the weight of the aggravating and mitigating
circumstances demand death sentences for both defendants.
Therefore, if the recommendation of the jury for the defendant
Miller were followed, that would result in two co-perpetrators who
participated equally in a crime having disparate sentences. It
would cause a hollow ring in the Florida halls of justice if the
sentences in these cases were not to be equalized." Findings in
Support of Sentences 6 ( citations omitted).
"The goal in the law is regularity or uniformity in the
application of those available sentences. Now, the Court, our
Supreme Court in Florida has also said that . . . [the fact that]
two co-perpetrators who participated equally in the crime would
have disparate sentences if the jury recommendation were to be
accepted has to be a strong consideration." Transcript at 17.
Page 459 U.S.
1158 , 1160
In sentencing petitioner to death, the judge expressly relied on
the recommendation made by a different jury following the separate
trial of a different defendant. There is much force to petitioner's
contention that this reliance on the recommendation made by Jent's
jury was inconsistent with the judge's constitutional duty to
decide whether to impose a death sentence on the basis of an
"objective consideration of the particularized circumstances of the
individual offense and the individual offender." Jurek v. Texas,
428 U.S.
262, 274, 2957 ( 1976) (plurality opinion of STEWART, POWELL,
and STEVENS, JJ.). See, e.g., Eddings v. Oklahoma,
455 U.S. 104, ___, 875 (
1982); Lockett v. Ohio,
438 U.S.
586, 606, 2965d 973 (1978) (plurality opinion); Roberts v.
Louisiana,
431 U.S.
633, 637, 1995 (1977) (per curiam); Woodson v. North Carolina,
428 U.S. 280,
303-304, 2990-91 (1976) (plurality opinion of STEWART, POWELL, and
STEVENS, JJ.). Our cases make clear that in capital cases "[t]he
fundamental respect for humanity underlying the Eighth Amendment .
. . requires consideration of the character and propensities of the
individual offender." Woodson v. North Carolina, supra, at 304.
Although it is impossible to determine the precise extent to
which the recommendation of the jury in Jent's case persuaded the
judge to minimize or disregard the differences between petitioner
and Jent,* it is undeniable that the judge
Page 459 U.S.
1158 , 1161
allowed that recommendation to influence his choice of
petitioner's sentence. There is, at the very least, a substantial
question whether the judge thereby relied on a constitutionally
impermissible consideration, for the jury that recommended a death
sentence for Jent heard none of the mitigating evidence presented
by petitioner, and petitioner had no opportunity to challenge the
evidence and arguments presented by the State in Jent's trial and
sentencing proceeding.
In my view, the trial judge in this case confused his inquiry as
sentencer with that undertaken by an appellate court in determining
whether a sentence of death was warranted. An appellate court, in
the performance of the reviewing function which this Court has held
indispensable to a constitutionally acceptable capital punishment
scheme, must examine the sentences imposed in all capital cases in
the jurisdiction in order "to ensure that similar results are
reached in similar cases." Proffitt v. Florida,
428 U.S.
242, 258, 2969 (1976) (opinion of STEWART, POWELL and STEVENS,
JJ.). See also, e.g., Godfrey v. Georgia,
446 U.S.
420, 433, 1767 (1980) (plurality). The sentencer has a
different role. The sentencer's duty is to determine in the first
instance whether a death sentence is warranted for a particular
defendant. That determination can only be made on the basis of the
evidence that the judge has heard with respect to that defendant,
and, under the Florida procedure, on the recommendation made by the
jury that heard that evidence. A capital sentencing determination
cannot properly be made on the basis of evidence presented in
another trial or a recommendation made by another jury.
Page 459 U.S.
1158 , 1162
It is no answer to say that a sentencing judge's failure to
consider the recommendations made by juries in other cases will
make if difficult or impossible to produce a rational pattern of
sentences. If this is true, the fault lies in the capital
sentencing scheme itself. The remedy is not to deny a defendant the
individualized consideration to which he is entitled, but to review
the sentences that are actually imposed and to set aside death
sentences in those cases that cannot be distinguished from cases in
which life sentences were imposed.
Footnotes
[
Footnote *] Petitioner had no
history of prior criminal activity. In addition, a clinical
psychologist testified that petitioner did not have a violent
nature, but had "basically a dependent personality." The
psychologist testified that petitioner had come under the negative
influence of Jent but would respond positively to the influence of
"a stronger person [who] is a favorable, community oriented
individual." The trial judge gave no weight to this testimony. If
the judge who sentenced petitioner had not also sentenced Jent, or
if the jury had recommended life imprisonment for Jent, the judge
may well have been willing to take this testimony into account.
The court also declined to admit additional testimony offered by
the clinical psychologist regarding petitioner's capacity for
rehabilitation. The court's exclusion of such mitigating evidence
may itself have been a violation of due process. The sentencer may
"not be precluded from considering, as a mitigating factor, any
aspect of a defendant's character or record . . . that the
defendant proffers as a basis for a sentence less than death."
Lockett v. Ohio,
438 U.S.
586, 604, 2965 (1976) (plurality opinion) (emphasis in
original) (footnotes omitted). See Eddings v. Oklahoma,
455 U.S. 104, ___, 875
(1982).
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