OCTOBER TERM, 1992
Syllabus
RICHMOND
v. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-7094. Argued October 13, 1992-Decided December 1,1992
Following a sentencing hearing on petitioner Richmond's first
degree murder conviction, the Arizona trial judge found three
statutory aggravating factors, including, under Ariz. Rev. Stat.
Ann. § 13-703(F)(6), that the offense was committed in an
"especially heinous, cruel or depraved manner" ((F)(6) factor).
Concluding also that there were no mitigating circumstances
sufficiently substantial to warrant leniency, the judge sentenced
Richmond to death. The State Supreme Court affirmed, with each of
the five justices joining one of three opinions. Among other
things, the principal opinion for two of the justices found that
the (F)(6) factor-which had been narrowed in
State v.
Gretzler, 135 Ariz. 42, 659 P. 2d 1, subsequent to
Richmond's sentencing-was applicable. The principal opinion also
conducted an independent review of the sentence and concluded that
Richmond's mitigation evidence did not outweigh the aggravating
factors. In a special concurrence, two of the other justices
disagreed that the offense came within the (F)(6) factor as
narrowed by
Gretzler, but agreed that a death sentence was
appropriate even absent that factor. The fifth justice filed a
dissenting opinion urging reversal. After this Court denied
certiorari, the Federal District Court declined to grant Richmond
habeas corpus relief, and the Court of Appeals affirmed.
Held: Richmond's death sentence violates the Eighth
Amendment. The (F)(6) factor was unconstitutionally vague at the
time the sentencing judge gave it weight.
Walton v.
Arizona, 497
U. S. 639, 654. The State Supreme Court did not cure this
error, because the two specially concurring justices did not
actually reweigh the aggravating and mitigating circumstances in
affirming the sentence. See,
e. g., Clemons v.
Mississippi, 494 U. S. 738. Those
justices did not purport to perform a new sentencing calculus, or
even mention the evidence in mitigation. Nor can such a reweighing
be presumed, since language in the concurrence plainly indicates
that Richmond's aggravated criminal background provided a
conclusive justification for the death penalty, thereby
evincing the sort of automatic affirmance rule proscribed in a
"weighing" State such as Arizona.
Id., at 751. Because a
majority of the State Supreme Court did not perform a curative
reweighing in voting to af-
41
firm Richmond's death sentence, the question whether the
principal opinion properly relied on the (F)(6) factor as narrowed
in
Gretzler need not be decided by this Court. Pp.
46-52.
948 F.2d
1473, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER,
and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion,
post, p. 52. SCALIA, J., filed a dissenting opinion,
post, p. 53.
Timothy K. Ford argued the cause for petitioner. With him
on the briefs were
Judith H. Ramseyer and
Carla
Ryan.
Paul J.
McMurdie argued the cause for
respondents.
With him on the brief were
Grant Woods, Attorney General
of Arizona, and
Jack Roberts, Assistant Attorney
General.
JUSTICE O'CONNOR delivered the opinion of the Court. The
question in this case is whether the Supreme Court of Arizona has
cured petitioner's death sentence of vagueness error.
I
On August 25, 1973, Bernard Crummett had the misfortune to meet
Rebecca Corella in a Tucson, Arizona, bar. Crummett left the bar
with Corella and, in the parking lot, met petitioner, who had been
waiting for Corella with his girlfriend, Faith Erwin. Corella
agreed to perform an act of prostitution with Crummett, and
petitioner drove the group to Corella's hotel. There, Corella
communicated to petitioner that Crummett was "loaded," and
petitioner in turn whispered to Erwin that he intended to rob
Crummett.
After Corella and Crummett concluded their encounter at the
hotel, the group again went for a drive, this time to a deserted
area outside Tucson, where, Crummett believed, Corella would
perform another act of prostitution. Petitioner stopped the car and
got out. He first struck Crummett to the ground and next threw
several large rocks at Crummett's head. Crummett's watch and wallet
were
42
taken by Corella, petitioner, or both, and these two then drove
away with Erwin. Either petitioner or Corella was driving, and
whoever it was drove the car over Crummett twice. Crummett suffered
injuries to his head and trunk, and died.
The State of Arizona charged petitioner with robbery and first
degree murder. Erwin testified at the jury trial that petitioner
drove the car over Crummett, but admitted that she had been
intoxicated by heroin at the time. A defense witness stated that
Erwin previously had identified Corella as the driver. Neither
Corella nor petitioner took the stand, although the prosecution did
introduce a postarrest statement by petitioner in which he
acknowledged robbing Crummett but claimed that Corella was the
driver. There was medical testimony that a car had crushed
Crummett's head, killing him, and that the injuries to his trunk,
also vehicular, took place at least 30 seconds later.
Petitioner was convicted of both robbery and first degree
murder. The jury was instructed as to the elements of felony murder
as well as premeditated murder; the murder conviction was returned
by a general verdict. Judge Roylston held the penalty hearing
required by Ariz. Rev. Stat. Ann. § 13-703 (1989), then codified as
§ 13-454, and sentenced petitioner to death for the murder and
15-20 years' imprisonment for the robbery. The judge found two
statutory aggravating factors: that petitioner had a prior felony
conviction involving the use or threat of violence on another
person, § 13-703(F)(2) (an armed kidnaping), and that petitioner
"committed the offense in an especially heinous, cruel or depraved
manner," § 13-703(F)(6) «F)(6) factor). Specifically, Judge
Roylston's written order stated that "the Defendant did commit the
offense in an especially heinous and cruel manner." App. 44. There
was no explicit finding about the identity of the driver of the
vehicle.
Petitioner unsuccessfully sought postconviction relief in the
trial court, attaching two affidavits by persons who
43
claimed to have been told by Corella that she, not petitioner,
drove the car over Crummett. The Supreme Court of Arizona affirmed
the sentence, conviction, and denial of postconviction relief.
State v.
Richmond, 114 Ariz. 186, 560 P. 2d 41
(1976). Although the opinion is ambiguous on this point, it appears
that the court did not reach petitioner's vagueness challenge to
the "especially heinous, cruel or depraved" factor because his
death sentence was supported by another valid aggravating factor
and no statutory mitigating factors applied.
Id., at
196-197, 560 P. 2d, at 51-52. We denied certiorari. 433 U. S. 915
(1977). Federal habeas corpus proceedings ensued, as a result of
which petitioner's conviction was found valid but his sentence
invalid because the sentencing judge had been constrained to
consider a limited set of mitigating factors.
Richmond v.
Cardwell, 450 F. Supp. 519 (Ariz. 1978). Soon thereafter,
the Supreme Court of Arizona held the Arizona death penalty statute
unconstitutional insofar as it limited defendants to statutory
mitigating factors,
State v.
Watson, 120 Ariz. 441,
444-445, 586 P. 2d 1253, 1256-1257 (1978), and vacated every
pending Arizona death sentence, see Brief for Respondents 5.
Petitioner's resentencing took place in March 1980. At the
hearing, one defense witness testified that Erwin had identified
Corella as the driver, while another stated that Corella had
admitted the same. The defense also produced evidence of
petitioner's rehabilitation in prison and of the effect his
execution would have on his family. Judge Roylston again sentenced
petitioner to death, this time finding three statutory aggravating
circumstances: under Ariz. Rev. Stat. Ann. § 13-703(F)(2) (prior
violent felony) and § 13703(F)(6) ("especially heinous, cruel or
depraved" offense), as before, and also under § 13-703(F)(1) (prior
felony meriting life imprisonment), for a murder charge of which
petitioner had been convicted after the first sentencing even
though the murder predated Crummett's. Once again, the judge found
that "the Defendant did commit the offense in this case
44
in an especially heinous and cruel manner," App. 74, but did not
explicitly find that petitioner was the driver. The findings as to
mitigation were, among others, that "Rebecca Corella was involved
in the offense but was never charged with any crime"; that "Faith
[E]rwin was involved in the offense but was never charged with any
crime"; that "the jury was instructed both on the matters relating
to the felony murder rule, as well as matters relating to
premeditated murder"; and that "the Defendant's family ... will
suffer considerable grief as a result of any death penalty that
might be imposed."
Id., at 75. The judge was unable to make
a definitive finding as to rehabilitation and concluded that "there
are no mitigating circumstances sufficiently substantial to call
for leniency."
Id., at 76.
A divided Supreme Court of Arizona affirmed, with each of the
five justices joining one of three opinions.
State v.
Richmond, 136 Ariz. 312, 666 P. 2d 57 (1983)
(Richmond
II). Chief Justice Holohan wrote the principal opinion for
himself and for Justice Hays, rejecting various challenges to
petitioner's sentence, including a challenge to the (F)(6) factor.
He reasoned that petitioner's offense was "heinous" and "depraved"
(but not "cruel") and that this factor was not unconstitutionally
vague:
"In [State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1,
cert. denied, 461 U. S. 971 (1983)], we discussed factors which
lead to a finding of heinousness or depravity. One factor is the
infliction of gratuitous violence on the victim; another related
factor is the needless mutilation of the victim. Here the victim
was already unconscious and bleeding when he was run over not once,
but twice, each time from a different direction. The evidence
indicates that the first run by the vehicle was over the victim's
head crushing his skull and killing him. The second run of the
vehicle was over the body of the victim .... Again the fact that
the victim in the instant case was run over
45
twice and his skull was crushed, we find to be a ghastly
mutilation of the victim." Id., at 319, 666 P. 2d, at
64.
The principal opinion then conducted an independent review of
the sentence, concluding that "the mitigation offered by
[petitioner] is not sufficiently substantial to outweigh the
[three] aggravating circumstances."
Id., at 321, 666 P. 2d,
at 66.
Justice Cameron, joined by Vice Chief Justice Gordon, wrote a
special concurrence. "I concur in the [principal opinion] except
its finding that this crime was heinous and depraved, and I concur
in the result."
Id., at 324,666 P.2d, at 69. The concurring
justices contended that petitioner committed neither "gratuitous
violence" nor "needless mutilation" within the meaning of
State v.
Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert.
denied, 461 U. S. 971 (1983). Gratuitous violence would have
obtained only if petitioner "knew or should have known that the
victim was dead after the first pass of the car" -if he "inflicted
any violence on the victim which he must have known was 'beyond the
point necessary to kill.'"
Richmond II, 136 Ariz., at 323,
666 P. 2d, at 68. Similarly, needless mutilation was interpreted to
mean "distinct acts, apart from the killing, specifically performed
to mutilate the victim's body."
Ibid. But the concurrence
agreed that a death sentence was appropriate for petitioner, even
absent the (F)(6) factor.
Justice Feldman dissented. He argued that the murder was not
"especially heinous, cruel or depraved" and that the mitigating
evidence of petitioner's rehabilitation precluded a death sentence.
Id., at 324-325, 666 P. 2d, at 69-70.
We denied certiorari. 464 U. S. 986 (1983). Petitioner filed a
habeas corpus action in the United States District Court for the
District of Arizona, challenging his sentence and conviction. The
District Court denied relief,
Richmond v.
Ricketts,
640 F. Supp. 767 (1986), and the Ninth Circuit affirmed,
921 F.2d
933 (1990). As to the (F)(6) factor, the panel held that a
valid narrowing construction of that factor
46
had been imposed in
Richmond II and, in the alternative,
that petitioner's sentence could stand without that factor despite
our decision in
Clemons v.
Mississippi, 494 U. S. 738 (1990).
"Elimination of the challenged factor would still leave enough
support for [petitioner's] sentence because the statute at issue
here is not a 'weighing' statute." 921 F.2d, at 947. The opinion
later was amended to omit that sentence, but the amended opinion
still reasoned: "Under the statute at issue in
Clemons, the
invalidation of an aggravating circumstance necessarily renders any
evidence of mitigation 'weightier' or more substantial in a
relative sense; the same, however, cannot be said under the terms
of the Arizona statute at issue here."
948 F.2d
1473, 1488-1489 (1992).
The Ninth Circuit denied rehearing en bane, with four judges
dissenting.
Id., at 1476. We granted certiorari, 503 U. S.
958 (1992), and now reverse.
II
Petitioner challenges his death sentence imposed at resentencing
in 1980. He argues that the "especially heinous, cruel or depraved"
aggravating factor specified by Ariz. Rev. Stat. Ann. §
13-703(F)(6) (1989), upon which the sentencing judge relied, was
unconstitutionally vague, and that the Supreme Court of Arizona
failed to cure this invalidity in
Richmond II.
The relevant Eighth Amendment law is well defined.
First, a statutory aggravating factor is unconstitutionally
vague if it fails to furnish principled guidance for the choice
between death and a lesser penalty. See,
e. g., Maynard v.
Cartwright, 486 U. S. 356, 361-364
(1988);
Godfrey v.
Georgia, 446 U. S. 420, 427-433
(1980). Second, in a "weighing" State, where the aggravating and
mitigating factors are balanced against each other, it is
constitutional error for the sentencer to give weight to an
unconstitutionally vague aggravating factor, even if other, valid
aggravating factors ob-
47
tain. See,
e. g., Stringer v.
Black, 503 U. S. 222, 229-232
(1992); Clemons v.
Mississippi, supra, at 748-752.
Third, a state appellate court may rely upon an adequate narrowing
construction of the factor in curing this error. See
Lewis
v.
Jeffers, 497 U. S. 764 (1990);
Walton v.
Arizona, 497 U. S. 639 (1990).
Finally, in federal habeas corpus proceedings, the state court's
application of the narrowing construction should be reviewed under
the "rational factfinder" standard of
Jackson v.
Virginia, 443
U. S. 307 (1979). See
Lewis v.
Jeffers, supra, at
781.
Arizona's "especially heinous, cruel or depraved" factor was at
issue in
Walton v.
Arizona, supra. As we explained,
"there is no serious argument that [this factor] is not facially
vague." 497 U. S., at 654. Respondents do not argue that the factor
had been narrowed adequately prior to petitioner's resentencing.
Thus it would have been error for Judge Roylston to give weight to
the (F)(6) factor, if he indeed balanced the aggravating and
mitigating factors in resentencing petitioner, and respondents now
agree that the judge did engage in this weighing process. See Brief
for Respondents 44 ("Arizona Is a Weighing State"). The Arizona
sentencing statute provides:
"In determining whether to impose a sentence of death ... the
court shall take into account the aggravating and mitigating
circumstances included in ... this section and shall impose a
sentence of death if the court finds one or more of the aggravating
circumstances ... and that there are no mitigating circumstances
sufficiently substantial to call for leniency." Ariz. Rev. Stat.
Ann. § 13-703(E) (1989).
This provision governed petitioner's resentencing and remains
unamended in relevant part. Read most naturally, it requires the
sentencer to weigh aggravating and mitigating circumstances-to
determine the relative "substan[ce]" of the two kinds of factors.
And the provision has been con-
48
strued thus by the Supreme Court of Arizona. See,
e. g.,
State v.
Brewer, 170 Ariz. 486, 504, 826 P. 2d 783,
801, cert. denied,
post, p. 872;
State v.
Gretzler, 135 Ariz., at 54-55, 659 P. 2d, at 13-14;
State v.
Valencia, 132 Ariz. 248, 250, 645 P.2d 239,
241 (1982);
State v.
Brookover, 124 Ariz. 38, 42, 601
P. 2d 1322, 1326 (1979). Nor do respondents contend that the (F)(6)
factor had no effect on the sentencing judge's calculus and
therefore was harmless.
Rather, they point to
State v.
Gretzler, supra,
which issued subsequent to the resentencing but prior to
Richmond II, and which provided an adequate narrowing
construction of the "especially heinous, cruel or depraved" factor.
See
Lewis v.
Jeffers, supra, at 777-778 (holding that
Gretzler definitions adequately narrowed (F)(6) factor);
Walton v.
Arizona, supra, at 652-655 (same).
Respondents assert that the principal opinion in
Richmond II
properly applied the
Gretzler construction of the (F)(6)
factor, while the concurrence ignored the factor, and that both
opinions reweighed. Petitioner argues that the principal opinion
improperly applied
Gretzler, and that the concurrence did
not reweigh.
We agree with petitioner that the concurrence in
Richmond
II did not reweigh. Our prior cases do not specify the degree
of clarity with which a state appellate court must reweigh in order
to cure an otherwise invalid death sentence, see
Clemons v.
Mississippi, supra, at 750-752; cf.
Sochor v.
Florida, 504
U. S. 527, 540 (1992) (discussing clarity of state appellate
court's harmless-error analysis);
Stringer v.
Black,
503 U. S., at 229-232 (same), and we need not do so here. At a
minimum, we must determine that the state court actually reweighed.
"[W]hen the sentencing body is told to weigh an invalid factor in
its decision, a reviewing court may not assume it would have made
no difference if the thumb had been removed from death's side of
the scale," id., at 232, nor can a court "cure" the error without
deciding, itself, that the valid aggravating factors are weightier
than the mitigating factors. "[O]nly constitutional harmless-error
analysis or
49
reweighing at the trial or appellate level suffices to guarantee
that the defendant received an individualized sentence."
Ibid. Where the death sentence has been infected by a vague
or otherwise constitutionally invalid aggravating factor, the state
appellate court or some other state sentencer must actually perform
a new sentencing calculus, if the sentence is to stand.
The concurring justices in
Richmond II did not purport to
perform such a calculus, or even mention the evidence in
mitigation. Respondents suggest that we presume reweighing, both
because the justices of the Supreme Court of Arizona have an
obligation to reweigh as part of their "independent review" of
death sentences, and because Justices Cameron and Gordon concurred
in the portion of the principal opinion that articulated this
obligation. Although there is some force to this suggestion, any
presumption of reweighing is overcome by the language of the
concurrence itself. After arguing that petitioner's offense did not
satisfy the (F)(6) factor, the concurrence offered this brief
explanation why a death sentence was justified nonetheless.
"The criminal record of this defendant, however, clearly places
him above the norm of first degree murderers. He has been convicted
of another first degree murder and a kidnapping, each arising in
separate incidents. This history of serious violent crime justifies
the imposition of the death penalty." Richmond II, 136
Ariz., at 323-324, 666 P. 2d, at 68-69.
The plain meaning of this passage is that petitioner's
aggravated background provided a
conclusive justification
for the death penalty. The passage plainly evinces the sort of
automatic affirmance rule proscribed in a "weighing" State-"a rule
authorizing or requiring affirmance of a death sentence so long as
there remains at least one valid aggravating circumstance."
Clemons v.
Mississippi, 494 U. S., at 751.
50
As to the two justices who joined the principal opinion in
Richmond II, Chief Justice Holohan and Justice Hays,
petitioner argues that these justices erred by relying upon the
(F)(6) "especially heinous, cruel or depraved" factor.
Specifically, petitioner contends that the justices refrained from
determining that he drove the car over Crummett; that in any case
the record before the Supreme Court of Arizona did not suffice to
support such a determination; and that the (F)(6) factor would not
apply even if he were the driver, unless he knew when he drove the
car over Crummett the second time that Crummett was already dead.
Respondents dispute each of these points, arguing that Chief
Justice Holohan and Justice Hays did determine petitioner to be the
driver; that the sentencing judge had made an implicit finding on
this score; and that the (F)(6) factor was applicable to the
driver, whether or not he knew Crummett to be dead. The parties do
agree that a state appellate court can cure a death sentence of
constitutional error even where only a minority of the court relies
upon a particular aggravating factor, as in
Richmond II, if
such reliance is otherwise legitimate. See Brief for Respondents
8-33; Reply Brief for Petitioner 3. We assume without deciding that
the parties are correct on this point. Instead, the dispute here is
simply whether the justices who relied upon the (F)(6) factor in
Richmond II ought to have done so.
Of course, the question to be decided by a federal court on
petition for habeas corpus is not whether the state sentencer
committed state-law error in relying upon an adequately narrowed
aggravating factor. See
Lewis v.
Jeffers, 497 U. S.,
at 780. Rather, the federal, constitutional question is whether
such reliance is "so arbitrary or capricious as to constitute an
independent due process or Eighth Amendment violation."
Ibid.
Gretzler, the narrowing construction of Arizona's (F)(6)
factor, reads as follows:
"[T]he statutory concepts of heinous and depraved involve a
killer's vile state of mind at the time of the mur-
51
der, as evidenced by the killer's actions. Our cases have
suggested specific factors which lead to a finding of heinousness
or depravity.
"[One such factor] is the infliction of gratuitous violence on
the victim ....
"[Another] is the needless mutilation of the victim."
135 Ariz., at 51-52, 659 P. 2d, at 10-11.
A murderer who intentionally drives a car over his victim twice
arguably commits "gratuitous violence" within the meaning of
Gretzler, whether or not he knows that the victim is dead
after the first pass. An Arizona sentencer would not commit
constitutional error by relying on the (F)(6) factor in sentencing
that murderer. Although it may be true that knowledge of the
victim's condition is required as a matter of Arizona law, indeed
Richmond II itself may now stand for that state-law
proposition, "federal habeas corpus relief does not lie for errors
of state law."
Lewis v.
Jeffers, supra, at 780. On
the other hand, respondents do agree that, on the facts of this
case, the Eighth Amendment would preclude the application of the
(F)(6) factor to petitioner if he did not intentionally drive the
car over Crummett. Tr. of Oral Arg. 38-39. Cf.
Tison v.
Arizona, 481
U. S. 137, 156-158 (1987) (conduct short of intentional killing
may show culpable mental state that justifies death penalty).
But we need not decide whether the principal opinion in
Richmond II remained within the constitutional boundaries of
the (F)(6) factor. Respondents assume that at least a majority of
the Supreme Court of Arizona needed to perform a proper reweighing
and vote to affirm petitioner's death sentence if that court was to
cure the sentence of the initial vagueness error. See Brief for
Respondents 27, 49, n. 16. Thus, even assuming that the two
justices who joined the principal opinion properly reweighed, their
votes did not suffice to validate the death sentence. One more
proper vote was needed, but there was none. As we have already
ex-
52
plained, the concurring justices who also voted to affirm
petitioner's sentence did not perform a curative reweighing, while
the dissenter voted to reverse. Therefore petitioner's sentence is
invalid, whether or not the principal opinion properly relied upon
the "especially heinous, cruel or depraved" factor.
III
Petitioner's death sentence was tainted by Eighth Amendment
error when the sentencing judge gave weight to an
unconstitutionally vague aggravating factor. The Supreme Court of
Arizona did not cure this error, because the two justices who
concurred in affirming the sentence did not actually perform a new
sentencing calculus. Thus the sentence, as it stands, violates the
Eighth Amendment.
We reverse the judgment of the Court of Appeals and remand with
instructions to return the case to the District Court to enter an
order granting the petition for a writ of habeas corpus unless the
State of Arizona within a reasonable period of time either corrects
the constitutional error in petitioner's death sentence or vacates
the sentence and imposes a lesser sentence consistent with law.
It is so ordered.
JUSTICE THOMAS, concurring.
The Court holds that the concurring Arizona Supreme Court
justices violated the rule of
Clemons v.
Mississippi,
494 U. S. 738
(1990), by failing to reweigh aggravating and mitigating
circumstances after concluding that only two of the three
aggravating circumstances found by the trial court were present in
this case. Respondents do not claim that this rule is a new one for
purposes of
Teague v.
Lane, 489 U. S. 288 (1989), and
that it is consequently unavailable to a habeas petitioner. The
reason, presumably, is that a
Teague defense is foreclosed
by
Stringer v.
Black, 503 U. S. 222 (1992),
which held that "there was no arguable basis" in Feb-
53
ruary 1985 to support the view that an appellate court in a
weighing State "was permitted to apply a rule of automatic
affirmance to any death sentence supported by multiple aggravating
factors, when one is invalid."
Id., at 231. Under
Stringer, the concurring Arizona Supreme Court justices
cannot be excused for their failure to reweigh; any reasonable
jurist should have known that "automatic affirmance" in a weighing
State violates the Eighth Amendment. *
I joined the dissent in
Stringer, and I continue to think
that case was wrongly decided. In particular, I remain convinced
that
Stringer transformed
Teague's retroactivity
principle from a rule that validates "reasonableness" into a rule
that mandates "prescience." 503 U. S., at 244 (SOUTER, J.,
dissenting). Had
Stringer been decided differently,
petitioner could not now complain that two Arizona Supreme Court
justices violated the Constitution in 1983 by neglecting to
reweigh. Nevertheless, because
Stringer is good law, and
because I agree that the concurring justices in this case did not
reweigh, I join the Court's opinion.
JUSTICE SCALIA, dissenting.
The Court today holds that Justice Cameron's special concurrence
erred in that, after having found that this murder was not
committed in an "especially heinous, cruel or depraved manner,"
Ariz. Rev. Stat. Ann. § 13-703(F)(6) (1989), it failed thereupon to
reweigh the remaining aggravating and mitigating circumstances
before affirming petitioner's death sentence. The Court does not
reach petitioner's claim that Chief Justice Holohan's opinion erred
in applying the Arizona
*Richmond's conviction became final on November 14, 1983-15
months before Stringer's conviction became final. I cannot imagine,
however, that this distinction renders
Stringer inapplicable
to this case. The decision in
Stringer rested on the premise
that the rule against automatic affirmance "emerges not from any
single case," but from a "long line of authority,"
Stringer
v.
Black, 503 U. S., at 232, and that "line of authority"
consists entirely of cases decided before Richmond's conviction
became final, see id., at 227-232.
54
limiting construction of this aggravating circumstance, see
State v.
Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert.
denied, 461 U. S. 971 (1983), and in thus finding this murder to
have been "heinous."
Under Arizona law, a murderer is eligible for the death penalty
if the trial court finds at least one statutory aggravating
circumstance. Ariz. Rev. Stat. Ann. § 13-703(E) (1989). Even
accepting both of petitioner's arguments with regard to the
"especially heinous, cruel or depraved" factor, it is beyond
dispute that two constitutionally valid aggravating circumstances
were found- namely, that petitioner had "been convicted of another
offense in the United States for which under Arizona law a sentence
of life imprisonment or death was imposable" (specifically,
first-degree murder), § 13-703(F)(1), and that petitioner had been
"previously convicted of a felony in the United States involving
the use or threat of violence on another person" (specifically,
armed kidnaping), § 13-703(F)(2). App. 73-74. Thus, the death
sentence unquestionably complied with the narrowing requirement
imposed by the line of cases commencing with
Furman v.
Georgia, 408
U. S. 238 (1972). In my view this Court has no colorable basis,
either in constitutional text or in national tradition, for
imposing upon the States a further constitutional requirement that
the sentencer consider mitigating evidence, see
Walton v.
Arizona, 497
U. S. 639, 671-673 (1990) (SCALIA, J., opinion concurring in
part and concurring in judgment). As this and other cases upon our
docket amply show, that recently invented requirement has
introduced not only a mandated arbitrariness quite inconsistent
with
Furman, but also an impenetrable complexity and hence a
propensity to error that make a scandal and a mockery of the
capital sentencing process.
Since in my view compliance with
Furman is all that was
required, any error committed by Chief Justice Holohan's
55
opinion in finding "heinousness" was harmless, and any failure
by Justice Cameron's special concurrence to reweigh raises no
federal question. Accordingly, I would affirm.
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