CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1993
Syllabus
ROMANOv. OKLAHOMA
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA
No. 92-9093. Argued March 22, 1994-Decided June 13, 1994
During the sentencing phase of petitioner's first-degree murder
trial in Oklahoma, the State introduced a copy of the judgment and
death sentence he had received during an earlier trial for another
murder. The jury ultimately found that the aggravating
circumstances outweighed the mitigating circumstances, and imposed
a second death sentence on petitioner. In affirming, the Oklahoma
Court of Criminal Appeals acknowledged that the evidence of
petitioner's prior death sentence was irrelevant to determining the
appropriateness of the second death sentence, but held that
admission of the evidence did not violate the Eighth and Fourteenth
Amendments under
Caldwell v.
Mississippi, 472 U. S. 320, or so
infect the sentencing determination with unfairness as to amount to
a denial of due process.
Held: The admission of evidence regarding petitioner's
prior death sentence did not amount to constitutional error. Pp.
6-14.
(a) Admission of the evidence at issue did not contravene the
principle established in
Caldwell, supra, at 342 (O'CONNOR,
J., concurring in part and concurring in judgment), because the
evidence did not affirmatively mislead the jury regarding its role
in the sentencing process so as to diminish its sense of
responsibility for the capital sentencing decision. Such evidence
was not false at the time it was admitted and did not even pertain
to the jury's sentencing role. The trial court's instructions,
moreover, emphasized the importance of that role and never con-
I
2
Syllabus
veyed or intimated that the jury could shift its responsibility
in sentencing. Pp. 6-10.
(b) Although the evidence in question may have been irrelevant,
the jury's consideration of it did not render the sentencing
proceeding so unreliable that it violated the Eighth Amendment
under
Lockett v.
Ohio, 438 U. S. 586, 604
(plurality opinion), and
Woodson v.
North Carolina,
428 U. S. 280,
305. That the evidence may have been irrelevant as a matter of
state law does not render its admission federal constitutional
error. See
Estelle v.
McGuire, 502 U. S. 62, 67.
Dawson v.
Delaware, 503 U. S. 159, 167, and
Zant v.
Stephens, 462 U. S. 862, 885, are
plainly inapposite, since petitioner does not argue that admission
of the evidence allowed the jury to consider, in aggravation,
constitutionally protected conduct.
Johnson v.
Mississippi, 486 U. S. 578, 586, 590,
n. 8, is also inapposite, since it is perfectly consistent with the
Court of Criminal Appeals' approach and does not stand for the
proposition that the mere admission of irrelevant and prejudicial
evidence requires the overturning of a death sentence. This Court
declines petitioner's request to fashion a federal code of general
evidentiary rules, under the guise of interpreting the Eighth
Amendment, which would supersede state rules in capital sentencing
proceedings. Pp. 10-12.
(c) Introduction of the evidence in question did not so infect
the trial with unfairness as to render the jury's imposition of the
death penalty a denial of due process under the analytical
framework set forth in
Donnelly v.
DeChristoforo,
416 U. S. 637,
643. Presuming that the trial court's instructions were followed,
they did not offer the jurors any means by which to give effect to
the irrelevant evidence of petitioner's prior sentence, and the
relevant evidence presented by the State was sufficient to justify
the imposition of the death sentence in this case. Even assuming
that the jury disregarded its instructions and allowed the
irrelevant evidence to influence its decision, a finding of
fundamental unfairness on the basis of this record would be an
exercise in speculation, rather than reasoned judgment, since it
seems equally plausible that the evidence in question could have
influenced the jurors either to impose, or not to impose, the death
sentence. Pp. 12-14.
847 P. 2d 368, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J.,
filed a concurring opinion,
post, p. 14. BLACKMUN, J., filed
a dissenting opinion,
post, p. 15. GINSBURG, J., filed a
dissenting opinion, in which BLACKMUN, STEVENS, and SOUTER, JJ.,
joined,
post, p. 15.
3
Lee Ann Jones Peters argued the cause for petitioner.
With her on the briefs was
Robert A. Ravitz.
A. Diane Blalock, Assistant Attorney General of Oklahoma,
argued the cause for respondent. With her on the brief was
Sandra D. Howard, Assistant Attorney General. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner murdered and robbed Roger Sarfaty in 1985.
In 1986, he murdered and robbed Lloyd Thompson. Petitioner was
tried separately for each murder. The Thompson trial occurred
first, and an Oklahoma jury found petitioner guilty and sentenced
him to death. Petitioner was then tried for the Sarfaty murder. A
different Oklahoma jury found him guilty and sentenced him to
death. During the sentencing phase of the Sarfaty trial, the State
introduced a copy of the judgment and sentence petitioner received
for the Thompson murder. Petitioner contends that the admission of
evidence regarding his prior death sentence undermined the Sarfaty
jury's sense of responsibility for determining the appropriateness
of the death penalty, in violation of the Eighth and Fourteenth
Amendments. We disagree and hold that the admission of this
evidence did not amount to constitutional error.
In Oklahoma, capital trials are bifurcated into guilt and
sentencing phases. Okla. Stat., Tit. 21, § 701.10 (1981). The
* A brief of
amici curiae urging affirmance was filed for
the State of Ohio et al. by
Lee Fisher, Attorney General of
Ohio,
Richard A. Cordray, State Solicitor,
Simon B.
Karas, Deputy Chief Counsel, and
Cordelia A. Glenn and
Mary L. Hollern, Assistant Attorneys General, and by the
Attorneys General for their respective States as follows:
Winston Bryant of Arkansas,
Richard Blumenthal of
Connecticut,
Charles M. Oberly III of Delaware,
Pamela
Carter of Indiana,
Mike Moore of Mississippi,
Joseph
P. Mazurek of Montana,
Don Stenberg of Nebraska,
Ernest D. Preate, Jr., of Pennsylvania,
T. Travis
Medlock of South Carolina, and
Stephen D. Rosenthal of
Virginia.
4
sentencing jury may not impose a death sentence unless it
unanimously finds the existence of at least one statutory
aggravating circumstance beyond a reasonable doubt, and that any
aggravating circumstances outweigh any mitigating circumstances. §
701.12. At the sentencing phase of the Sarfaty trial, the State
sought to prove four aggravating circumstances, two of which are
relevant to our decision: (1) that petitioner had been previously
convicted of a violent felony; and (2) that petitioner would
constitute a continuing threat to society.l
In attempting to establish these two aggravating circumstances,
the State introduced evidence relating to the Thompson murder. The
State presented testimony by Thompson's neighbor concerning her
observations the day of the murder, Thompson's autopsy report, and
photographs and fingerprints showing that the defendant in the
Thompson case was in fact petitioner. The State also introduced a
copy of the judgment and sentence from the Thompson murder
conviction. That document revealed that petitioner had been
convicted of first-degree murder and had been sentenced to death.
App. 5-6. It also showed, and the trial court told the jury, that
petitioner planned on appealing from the judgment and sentence.
Id., at 7. Petitioner's counsel objected to the admission of
the document. He argued that, regardless of the admissibility of
the evidence of petitioner's conviction, the death sentence
petitioner received was not proper for the jury to consider. The
trial court overruled the objection and admitted the evidence.
Petitioner later presented evidence in mitigation.
Before closing arguments, the trial court instructed the jury.
It identified the four aggravating circumstances the State sought
to establish and told the jury that "[i]n determining which
sentence you may impose in this case, you may
1 The other two aggravating circumstances were that the murder
was especially heinous, atrocious, and cruel, and that it was
committed to avoid lawful arrest or prosecution.
5
consider only those [four] circumstances."
Id., at 9. The
court then identified the 17 mitigating circumstances offered by
petitioner. The jury was instructed that it could not impose the
death penalty unless it unanimously found that one or more
aggravating circumstances existed beyond a reasonable doubt and
that any such circumstances outweighed any mitigating
circumstances.
Id., at 8-12. In closing, the court
admonished the jury:
"You are the determiner of the facts. The importance and worth
of the evidence is for you to decide.
"I have made rulings during the second part of this trial. In
ruling, I have not in any way suggested to you, nor intimidated
[sic] in any way, what you should decide. I do not express any
opinion whether or not aggravating circumstances or mitigating
circumstances did or did not exist, nor do I suggest to you in any
way the punishment to be imposed by you.
"You must not use any kind of chance in reaching a verdict, but
you must rest it on the belief of each of you who agrees with it."
Id., at 13.
The jury found that all four aggravating circumstances existed
and that they outweighed the mitigating circumstances. It
accordingly imposed a death sentence. Petitioner appealed. While
his appeal in this case was pending, the Oklahoma Court of Criminal
Appeals overturned petitioner's conviction for the Thompson murder.
See
Romano v.
Oklahoma, 827 P. 2d 1335 (1992)
(Romano I). The Oklahoma Court of Criminal Appeals held that
petitioner's trial should have been severed from that of his
codefendant; it therefore reversed and remanded for a new
triaI.2
In his appeal in this case, petitioner argued,
inter
alia, that the trial court erred by admitting evidence of his
conviction and sentence for the Thompson murder. He asserted
2 On retrial for the Thompson murder, petitioner was again
convicted and again sentenced to death. Brief for Petitioner 31, n.
11.
6
that it was improper to admit the conviction because it was not
final at the time of admission, and it had since been overturned.
He also contended that the evidence of his death sentence in the
Thompson case impermissibly reduced the Sarfaty sentencing jury's
sense of responsibility for its decision, in violation of
Caldwell v.
Mississippi, 472 U. S. 320 (1985).
The Oklahoma Court of Criminal Appeals affirmed. 847 P. 2d 368,
390 (1993)
(Romano II). The Oklahoma court concluded that
the evidence regarding petitioner's prior death sentence was
irrelevant. Because the jury was properly instructed in this case,
however, it could not be said "that the jury in any way shifted the
responsibility for their decision or considered their decision any
less significant than they would otherwise."
Ibid. The Court
of Criminal Appeals further held that the admission of the evidence
"did not so infect the sentencing determination with unfairness as
to make the determination to impose the death penalty a denial of
due process."
Id., at 391.
Petitioner sought our review, and we granted certiorari, limited
to the following question: "Does admission of evidence that a
capital defendant already has been sentenced to death in another
case impermissibly undermine the sentencing jury's sense of
responsibility for determining the appropriateness of the
defendant's death, in violation of the Eighth and Fourteenth
Amendments?" 510 U. S. 943 (1993). We now affirm.
It is helpful to begin by placing petitioner's challenge within
the larger context of our Eighth Amendment death penalty
jurisprudence. We have held that the Eighth Amendment's concern
that the death penalty be both appropriate and not randomly imposed
requires the States to perform two somewhat contradictory tasks in
order to impose the death penalty.
First, States must properly establish a threshold below which
the penalty cannot be imposed.
McCleskey v.
Kemp,
7
481 U. S. 279,
305 (1987). To ensure that this threshold is met, the "State must
establish rational criteria that narrow the decisionmaker's
judgment as to whether the circumstances of a particular
defendant's case meet the threshold."
Ibid. As we stated in
Lowenfield v.
Phelps, 484 U. S. 231 (1988),
"[t]o pass constitutional muster, a capital sentencing scheme must
'genuinely narrow the class of persons eligible for the death
penalty and must reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of
murder.'"
Id., at 244 (quoting
Zant v.
Stephens, 462
U. S. 862, 877 (1983)). In this respect, a State's sentencing
procedure must suitably direct and limit the decisionmaker's
discretion "'so as to minimize the risk of wholly arbitrary and
capricious action.'"
Id., at 874 (quoting
Gregg v.
Georgia, 428
U. S. 153, 189 (1976)). Petitioner does not allege that
Oklahoma's sentencing scheme fails to adequately perform the
requisite narrowing.
Second, States must ensure that "capital sentencing decisions
rest on [an] individualized inquiry," under which the "character
and record of the individual offender and the circumstances of the
particular offense" are considered. M c
Cleskey, supra, at
303 (internal quotation marks omitted); see also
Clemons v.
Mississippi, 494 U. S. 738, 748
(1990). To this end, "States cannot limit the sentencer's
consideration of any relevant circumstance that could cause it to
decline to impose the penalty. In this respect, the State cannot
channel the sentencer's discretion, but must allow it to consider
any relevant information offered by the defendant."
McCleskey,
supra, at 306.
Within these constitutional limits, "the States enjoy their
traditional latitude to prescribe the method by which those who
commit murder shall be punished."
Blystone v.
Pennsylvania, 494 U. S. 299, 309
(1990). This latitude extends to evidentiary rules at sentencing
proceedings. See,
e. g.,
Gregg, supra, at 203-204
(approving "the wide scope of evidence and argument allowed at
presentence hearings"
8
in Georgia). As we observed in
California v.
Ramos,
463 U. S. 992, 999 (1983):
"In ensuring that the death penalty is not meted out arbitrarily
or capriciously, the Court's principal concern has been more with
the procedure by which the State imposes the death sentence
than with the substantive factors the State lays before the jury as
a basis for imposing death, once it has been determined that the
defendant falls within the category of persons eligible for the
death penalty."
See also id., at 1008 ("Once the jury finds that the defendant
falls within the legislatively defined category of persons eligible
for the death penalty ... the jury then is free to consider a
myriad of factors to determine whether death is the appropriate
punishment").
We have also held, in
Caldwell v.
Mississippi,
that the jury must not be misled regarding the role it plays in the
sentencing decision. See 472 U. S., at 336 (plurality opinion);
id., at 341-342 (O'CONNOR, J., concurring in part and concurring in
judgment). The prosecutor in
Caldwell, in remarks which
"were quite focused, unambiguous, and strong," misled the jury to
believe that the responsibility for sentencing the defendant lay
elsewhere.
Id., at 340. The trial judge "not only failed to
correct the prosecutor's remarks, but in fact openly agreed with
them."
Id., at 339.
The plurality concluded that the prosecutor's remarks, along
with the trial judge's affirmation, impermissibly "minimize[d] the
jury's sense of responsibility for determining the appropriateness
of death."
Id., at 341. Such a diminution, the plurality
felt, precluded the jury from properly performing its
responsibility to make an individualized determination of the
appropriateness of the death penalty.
Id., at 330331.
JUSTICE O'CONNOR, in her opinion concurring in part and concurring
in the judgment, identified more narrowly the infirmity in the
prosecutor's remarks: "In my view, the
9
prosecutor's remarks were impermissible because they were
inaccurate and misleading in a manner that diminished the jury's
sense of responsibility."
Id., at 342.
As JUSTICE O'CONNOR supplied the fifth vote in
Caldwell,
and concurred on grounds narrower than those put forth by the
plurality, her position is controlling. See
Marks v.
United States, 430 U. S. 188, 193
(1977);
Gregg, supra, at 169, n. 15. Accordingly, we have
since read
Caldwell as "relevant only to certain types of
comment-those that mislead the jury as to its role in the
sentencing process in a way that allows the jury to feel less
responsible than it should for the sentencing decision."
Darden v.
Wainwright, 477 U. S. 168, 184, n. 15
(1986). Thus, "[t]o establish a
Caldwell violation, a
defendant necessarily must show that the remarks to the jury
improperly described the role assigned to the jury by local law."
Dugger v.
Adams, 489 U. S. 401, 407
(1989); see also
Sawyer v.
Smith, 497 U. S. 227, 233
(1990).
Petitioner argues that
Caldwell controls this case. He
contends that the evidence of his prior death sentence
impermissibly undermined the sentencing jury's sense of
responsibility, in violation of the principle established in
Caldwell. We disagree. The infirmity identified in
Caldwell is simply absent in this case: Here, the jury was
not affirmatively misled regarding its role in the sentencing
process. The evidence at issue was neither false at the time it was
admitted, nor did it even pertain to the jury's role in the
sentencing process. The trial court's instructions, moreover,
emphasized the importance of the jury's role. As the Court of
Criminal Appeals observed:
"The jury was instructed that it had the responsibility for
determining whether the death penalty should be imposed .... It was
never conveyed or intimated in any way, by the court or the
attorneys, that the jury could shift its responsibility in
sentencing or that its role in any way had been minimized."
Romano II, 847 P. 2d, at 390.
10
We do not believe that the admission of evidence regarding
petitioner's prior death sentence affirmatively misled the jury
regarding its role in the sentencing process so as to diminish its
sense of responsibility. The admission of this evidence, therefore,
did not contravene the principle established in
Caldwell.
That this case is different from
Caldwell only resolves
part of petitioner's challenge. In addition to raising a
"Caldwell" claim, petitioner presents a more general
contention: He argues that because the evidence of his prior death
sentence was inaccurate and irrelevant, the jury's consideration of
it rendered his sentencing proceeding so unreliable that the
proceeding violated the Eighth Amendment. See
Lockett v.
Ohio, 438 U.
S. 586, 604 (1978) (plurality opinion);
Woodson v.
North Carolina, 428 U. S. 280, 305
(1976). The Oklahoma court agreed that the "evidence of the
imposition of the death penalty by another jury is not relevant in
determining the appropriateness of the death sentence for the
instant offense."
Romano II, supra, at 391. That the
evidence may have been irrelevant as a matter of state law,
however, does not render its admission federal constitutional
error. See
Estelle v.
McGuire, 502 U. S. 62, 67
(1991).
Some of the cases upon which petitioner relies for support, to
be sure, do hold that the Constitution bars the introduction of
certain evidence at sentencing proceedings. But these cases are
plainly inapposite. Petitioner cites, for example,
Dawson v.
Delaware, 503
U. S. 159 (1992). There we held that the trial court erred by
admitting evidence, at Dawson's capital sentencing proceeding,
regarding Dawson's membership in a white racist prison gang known
as the Aryan Brotherhood. See
id., at 162-163. It was
constitutional error, however, only because the admission
violated "Dawson's First Amendment rights."
Id., at 167.
Dawson thus involved application of the principle first
enunciated in
Zant: An aggravating circumstance is invalid
if "it authorizes a jury to draw adverse inferences from conduct
that is
11
constitutionally protected." 462 U. S., at 885. Petitioner does
not argue that the admission of evidence regarding his prior death
sentence allowed the jury to consider, in aggravation,
constitutionally protected conduct. Accordingly, our decisions in
Dawson and
Zant do not support petitioner's
contention.
Petitioner also cites
Johnson v.
Mississippi,
486 U. S. 578
(1988), but it, too, is inapposite. There we reversed the
imposition of Johnson's death sentence because the only evidence
supporting an aggravating factor turned out to be invalid, and
because the Mississippi Supreme Court refused to reweigh the
remaining, untainted aggravating circumstances against the
mitigating circumstances.
Id., at 586, 590, n. 8. Similarly,
in this case the only evidence supporting the "prior violent
felony" aggravating circumstance was the judgment from petitioner's
conviction for the Thompson murder. That evidence, like the
evidence in
Johnson, was rendered invalid by the reversal of
petitioner's conviction on appeal.
Here, however, the Oklahoma Court of Criminal Appeals struck the
"prior violent felony" aggravator, reweighed the three untainted
aggravating circumstances against the mitigating circumstances, and
still concluded that the death penalty was warranted. See
Romano
II, supra, at 389, 393394. The Court of Criminal Appeals'
approach is perfectly consistent with our precedents, including
Johnson, where we remanded without limiting the Mississippi
Supreme Court's authority to reweigh the remaining aggravating
circumstances against the mitigating circumstances. See 486 U. S.,
at 590;
id., at 591 (White, J., concurring); see also
Clemons, 494 U. S., at 744-750. Contrary to petitioner's
assertion,
Johnson does not stand for the proposition that
the mere admission of irrelevant and prejudicial evidence requires
the overturning of a death sentence.
Petitioner's argument, pared down, seems to be a request that we
fashion general evidentiary rules, under the guise of interpreting
the Eighth Amendment, which would govern
12
the admissibility of evidence at capital sentencing proceedings.
We have not done so in the past, however, and we will not do so
today. The Eighth Amendment does not establish a federal code of
evidence to supersede state evidentiary rules in capital sentencing
proceedings. Cf.
Payne v.
Tennessee, 501 U. S. 808, 824-825
(1991);
Blystone, 494 U. S., at 309.
Petitioner finally argues that the introduction of the evidence
in question violated the Due Process Clause of the Fourteenth
Amendment. It is settled that this Clause applies to the sentencing
phase of capital trials. See,
e. g.,
Payne, supra, at
825;
Clemons, supra, at 746 ("[C]apital sentencing
proceedings must of course satisfy the dictates of the Due Process
Clause").
We believe the proper analytical framework in which to consider
this claim is found in
Donnelly v.
DeChristoforo,
416 U. S. 637,
643 (1974). There we addressed a claim that remarks made by the
prosecutor during his closing argument were so prejudicial as to
violate the defendant's due process rights. We noted that the case
was not one in which the State had denied a defendant the benefit
of a specific constitutional right, such as the right to counsel,
or in which the remarks so prejudiced a specific right as to amount
to a denial of that right.
Id., at 643. Accordingly, we
sought to determine whether the prosecutor's remark "so infected
the trial with unfairness as to make the resulting conviction a
denial of due process."
Ibid. We concluded, after an
"examination of the entire proceedings," that the remarks did not
amount to a denial of constitutional due process.
Ibid.
The relevant question in this case, therefore, is whether the
admission of evidence regarding petitioner's prior death sentence
so infected the sentencing proceeding with unfairness as to render
the jury's imposition of the death penalty a denial of due process.
See
Sawyer, 497 U. S., at 244 (observing that "[t]he
Caldwell rule was ... added to
[Donnelly's] existing
guarantee of due process protection against
13
fundamental unfairness"); see also
Darden, 477 U. S., at
178181 (in analyzing allegedly improper comments made by prosecutor
during closing argument of guilt-innocence stage of capital trial,
"[t]he relevant question is whether the prosecutors' comments 'so
infected the trial with unfairness as to make the resulting
conviction a denial of due process'" (quoting
Donnelly,
supra, at 643)). Under this standard of review, we agree with
the Oklahoma Court of Criminal Appeals that the admission of this
evidence did not deprive petitioner of a fair sentencing
proceeding.
The evidence that petitioner received a death sentence for
murdering Thompson was deemed irrelevant by the Oklahoma Court of
Criminal Appeals. See
Romano II, 847 P. 2d, at 391. However,
if the jurors followed the trial court's instructions, which we
presume they did, see
Richardson v.
Marsh, 481 U. S. 200, 206-207,
211 (1987), this evidence should have had little-if any-effect on
their deliberations. Those instructions clearly and properly
described the jurors' paramount role in determining petitioner's
sentence, and they also explicitly limited the jurors'
consideration of aggravating factors to the four which the State
sought to prove. Regardless of the evidence as to petitioner's
death sentence in the Thompson case, the jury had sufficient
evidence to justify its conclusion that these four aggravating
circumstances existed. Although one of the aggravating
circumstances proved invalid when petitioner's conviction for the
Thompson murder was overturned on appeal, the other three remained
untainted and still outweighed the mitigating circumstances. See
Romano II, supra, at 389, 393-394. In short, the
instructions did not offer the jurors any means by which to give
effect to the evidence of petitioner's sentence in the Thompson
murder, and the other relevant evidence presented by the State was
sufficient to justify the imposition of the death sentence in this
case.
Even assuming that the jury disregarded the trial court's
instructions and allowed the evidence of petitioner's prior
14
death sentence to influence its decision, it is impossible to
know how this evidence might have affected the jury. It seems
equally plausible that the evidence could have made the jurors more
inclined to impose a death sentence, or it could have made them
less inclined to do so. Either conclusion necessarily rests upon
one's intuition. To hold on the basis of this record that the
admission of evidence relating to petitioner's sentence in the
Thompson case rendered petitioner's sentencing proceeding for the
Sarfaty murder fundamentally unfair would thus be an exercise in
speculation, rather than reasoned judgment.
The judgment of the Oklahoma Court of Criminal Appeals is
Affirmed.
JUSTICE O'CONNOR, concurring.
The Court today, relying in part on my opinion in
Caldwell v.
Mississippi, 472 U. S. 320, 341
(1985), rejects petitioner's claim that the introduction of
evidence of a prior death sentence impermissibly undermined the
jury's sense of responsibility. I write separately to explain why
in my view petitioner's
Caldwell claim fails. The inaccuracy
of the prosecutor's argument in
Caldwell was essential to my
conclusion that the argument was unconstitutional. See id., at 342
("[T]he prosecutor's remarks were impermissible because they were
inaccurate and misleading in a manner that diminished the jury's
sense of responsibility"). An accurate description of the jury's
role-even one that lessened the jury's sense of
responsibility-would have been constitutional.
Ibid. ("[A]
misleading picture of the jury's role is not sanctioned by
[California v.
Ramos, 463 U. S. 992 (1983),]
[b]ut neither does
Ramos suggest that the Federal
Constitution prohibits the giving of accurate instructions
regarding postsentencing procedures").
Accordingly, I believe that petitioner's
Caldwell claim
fails because the evidence here was
accurate at the time it
was
15
admitted. Petitioner's sentencing jury was told that he had been
sentenced to death-and indeed he had been. Introducing that
evidence is no different than providing the jury with an accurate
description of a State's appellate review process. Both may (though
we can never know for sure) lessen the jury's sense of
responsibility, but neither is unconstitutional. Though evidence
like that involved in this case can rise to the level of a
Caldwell violation, to do so the evidence must be
both inaccurate
and tend to undermine the jury's
sense of responsibility.
Ibid.
It may well have been better practice for the State to agree to
accept petitioner's stipulation offer, or to excise the sentencing
information before submitting the Judgment and Sentence form to the
jury. But under our precedents, because this evidence was accurate,
I do not believe its introduction violated the Constitution.
JUSTICE BLACKMUN, dissenting.
I join JUSTICE GINSBURG'S dissent, which persuasively
demonstrates why the admission of Romano's prior death sentence,
like the prosecutor's arguments in
Caldwell v.
Mississippi, 472 U. S. 320 (1985),
created an unacceptable risk of leading the jurors to minimize the
importance of their roles. Even if this particular constitutional
error were not present in this case, I would vacate Romano's death
sentence and remand for resentencing in adherence to my view that
the death penalty cannot be imposed fairly within the constraints
of our Constitution. See
Callins v.
Collins, 510 U.
S. 1141, 1143 (1994).
JUSTICE GINSBURG, with whom JUSTICE BLACKMUN, JUSTICE STEVENS,
and JUSTICE SOUTER join, dissenting.
In
Caldwell v.
Mississippi, 472 U. S. 320 (1985),
this Court overturned a capital sentence as inadequately reliable
because of a statement made by the prosecutor, in closing argument
at the penalty phase of the trial. The
Caldwell prose-
16
cutor told the jury: "'[Y]our [sentencing] decision is not the
final decision'''; "'the decision you render is automatically
reviewable by the [State] Supreme Court.'"
Id., at 325-326.
Responding to the issue presented in Caldwell, this Court observed
that capital sentencing jurors, required to determine "whether a
specific human being should die at the hands of the State," id., at
329, are "placed in a very unfamiliar situation and called on to
make a very difficult and uncomfortable choice," id., at 333. Such
jurors, the Court noted, might find "highly attractive" the
prosecutor's suggestion that persons other than themselves would
bear "responsibility for any ultimate determination of death."
Id., at 332-333.
The possibility the jury might have embraced the prosecutor's
suggestion, the Court concluded, rendered the imposition of the
death penalty inconsistent with the Constitution's requirement of
individualized and reliable capital sentencing procedures. See id.,
at 323, 329-330, 340-341. Emphasizing the" 'truly awesome
responsibility'" imposed upon capital sentencing juries, id., at
329, quoting McGautha v. Cali
fornia, 402 U. S. 183,208 (1971),
the Court held:
"[I]t is constitutionally impermissible to rest a death sentence
on a determination made by a sentencer who has been led to believe
that the responsibility for determining the appropriateness of the
defendant's death rests elsewhere." 472 U. S., at 328-329.
In my view, this principle, reiterated throughout the Court's
Caldwell opinion,l covers the present case: The jury's
1 See 472 U. S., at 323 (sentence constitutionally invalid,
because unreliable, if "the sentencing jury is led to believe that
responsibility for determining the appropriateness of a death
sentence rests not with the jury but with the appellate court which
later reviews the case"); id., at 333 ("[T]he uncorrected
suggestion that the responsibility for any ultimate determination
of death will rest with others presents an intolerable danger that
the jury will in fact choose to minimize the importance of its
role."); id., at 341 (because the State's effort "to minimize the
jury's sense
17
consideration of evidence, at the capital sentencing phase of
petitioner Romano's trial, that a prior jury had already sentenced
Romano to death, infected the jury's life-or-death deliberations as
did the prosecutorial comments condemned in
Caldwell.
Accordingly, I would vacate the death sentence imposed upon Romano
and remand for a new sentencing hearing.
I
At the penalty phase of Romano's trial for the murder of Roger
Sarfaty, the prosecution sought to put before the jury a copy of
the "Judgment and Sentence" from an earlier and unrelated
prosecution. That document revealed that Romano had been convicted
of the first-degree murder of Lloyd Thompson and that he was to be
executed for that crime. Defense counsel offered to stipulate to
Romano's conviction for the Thompson murder, but objected to the
jury's consideration of the death sentence. The trial court
overruled defense counsel's objection and admitted the "Judgment
and Sentence" document. That document stated that Romano had given
"no good reason why [the] Judgment and Sentence [for the murder of
Thompson] should not be pronounced," and commanded the State's
Department of Corrections "to put the said JOHN JOSEPH ROMANO to
death." App.6. The jury in the instant, Sarfaty murder case also
sentenced Romano to death.
During the pendency of Romano's appeal from his conviction and
sentence for the Sarfaty murder, the Oklahoma Court of Criminal
Appeals vacated his conviction for the Thompson murder.
Romano v.
State, 827 P. 2d 1335 (1992). Romano urged
on appeal in the Sarfaty case that, under
Caldwell v.
Mississippi, it was impermissible to place before the jury,
as relevant to its deliberations whether Romano
of responsibility for determining the appropriateness of death"
might have affected the sentencing decision, the death sentence
must be vacated).
18
should live or die, evidence that he was already under sentence
of death.
The Oklahoma court rejected that contention and affirmed
Romano's conviction and death sentence for the Sarfaty murder. 847
P. 2d 368, 390 (Okla. Crim. App. 1993). In so ruling, the court
acknowledged that "[l]earning that the defendant had previously
received a death sentence for another murder could diminish the
jury's sense of importance of its role and mitigate the
consequences of [its] decision."
Ibid. The court further
recognized that "evidence of the imposition of the death penalty by
another jury is not relevant in determining the appropriateness of
the death sentence for the instant offense."
Id., at 391.
Nevertheless, the court concluded, "when the jury is properly
instructed as to its role and responsibility in making such a
determination we cannot, on appellate review, conclude that the
jur[ors] in any way shifted the responsibility for their decision
or considered their decision any less significant than they would
otherwise."
Id., at 390.2 That judgment is now before the
Court.3
II
In Caldwell, this Court found constitutionally impermissible a
prosecutor's statement, at the penalty phase of a capital trial,
that the jury's decision was "not the final decision" because it
was "automatically reviewable." The prosecutor's assurances were
impermissible, the Court ruled, because they created an
unacceptable risk that the jury would "minimize the importance of
its role," "believ[ing] that the responsibility for determining the
appropriateness of the defend-
2 The court also observed that, although death sentences attract
"heightened" appellate scrutiny, "a presumption of correctness"
attends the jury's determination. 847 P. 2d, at 391.
3 Romano was subsequently reconvicted at his second trial for
the Thompson murder and again sentenced to death. See Brief for
Petitioner 31, n. 11. The State does not suggest that these events
affect the question we consider.
19
ant's death rest[ed] elsewhere."
Caldwell, 472 U. S., at
333, 329. This belief, the Court explained, is inconsistent with
the "heightened 'need for reliability'" in capital sentencing.
Id., at 323, quoting
Woodson v.
North
Carolina, 428 U.
S. 280, 305 (1976) (plurality opinion).
The risk of diminished jury responsibility was also grave in
Romano's case. Revealing to the jury that Romano was condemned to
die for the Thompson murder signaled to the jurors in the Sarfaty
murder case that Romano faced execution regardless of their
life-or-death decision in the case before them. Jurors so informed
might well believe that Romano's fate had been sealed by the
previous jury, and thus was not fully their responsibility. See
People v.
Hope, 116 Ill. 2d 265, 274, 508 N. E. 2d
202, 206 (1986) (" '[T]he jury's awareness of defendant's prior
death sentence would diminish its sense of responsibility ....
Assuming that defendant was already going to be executed, the
jurors may consider their own decision considerably less
significant than they otherwise would.' "), quoting
People
v.
Davis, 97 Ill. 2d 1, 26, 452 N. E. 2d 525, 537 (1983);
West v.
State, 463 So. 2d 1048, 1052-1053 (Miss.
1985) ("[I]f the jury knows that the [defendant] is already under a
sentence of death it would tend to relieve them of their separate
responsibility to make that determination.").
A juror uncertain whether to vote for death or for life might be
swayed by the knowledge that "'another jury had previously resolved
the identical issue adversely to defendant.'"
Hope, 116 Ill.
2d, at 274,508 N. E. 2d, at 206, quoting
Davis, 97 Ill. 2d,
at 26, 452 N. E. 2d, at 537. Such a juror, although "unconvinced
that death is the appropriate punishment, ... might nevertheless
wish to 'send a message' of extreme disapproval for the defendant's
acts,"
Caldwell, 472 U. S., at 331, reasoning that the
defendant was already to be executed in any event. Furthermore,
jurors otherwise inclined to hold out for a life sentence might
acquiesce in a death penalty they did not truly believe warranted.
Cf. id.,
20
at 333 ("[O]ne can easily imagine that in a case in which the
jury is divided on the proper sentence, the presence of appellate
review could effectively be used as an argument for why those
jurors who are reluctant to invoke the death sentence should
nevertheless give in.").
Respondent State of Oklahoma correctly observes, however, that
evidence of a prior death sentence may not produce a unidirectional
bias toward death. Brief for Respondent 23. Some jurors, otherwise
inclined to believe the defendant deserved the death penalty for
the crime in the case before them, might nonetheless be anxious to
avoid any feeling of responsibility for the defendant's execution.
Jurors so minded might vote for a life sentence, relying on the
prior jury's determination to secure defendant's death. See
ante, at 14. The offending prosecutorial comments in
Caldwell, by contrast, created an apparently unidirectional
"bias toward a death sentence," for the appellate review that the
Caldwell jurors were encouraged to consider could occur only
if the jury sentenced the defendant to death, not if it voted for
life. 472 U. S., at 331-332. Oklahoma maintains that Romano remains
outside the
Caldwell principle, because he is unable to
demonstrate that the evidence of his prior death sentence tilted
the jurors toward death.
Romano's prosecutor, at least, seems to have believed that
informing the jurors of the prior death sentence would incline them
toward death, for otherwise, he probably would not have insisted
upon introducing the "Judgment and Sentence" itself, over Romano's
objection, and despite Romano's offer to stipulate to the
underlying conviction. Most critically,
Caldwell, as I
comprehend that decision, does not require Romano to prove that the
prosecutor's hunch was correct, either in Romano's case in
particular or in death penalty cases generally.
Caldwell dominantly concerns the capital sentencing
jury's awareness and acceptance of its" 'awesome responsibility.'"
Id., at 341. To assure that acceptance, this Court's
Eighth
21
Amendment jurisprudence instructs, capital sentencing procedures
must be especially reliable. See id., at 323 (prosecutor's comments
were "inconsistent with the Eighth Amendment's heightened 'need for
reliability in the determination that death is the appropriate
punishment in a specific case' "), quoting
Woodson v.
North Carolina, 428 U. S., at 305; 472 U. S., at 341 (death
sentence "does not meet the standard of reliability that the Eighth
Amendment requires," when it may have been affected by the State's
attempt "to minimize the jury's sense of responsibility for
determining the appropriateness of death"). Under
Caldwell's
reasoning, diminution of jurors' sense of responsibility violates
the Eighth Amendment's reliability requirement, whether or not a
defendant can demonstrate empirically that the effect of this
diminution was to bias the jurors' judgment toward death. According
to
Caldwell, if a reviewing court "cannot say" that an
effort "to minimize the jury's sense of responsibility for
determining the appropriateness of death ... had no effect on the
sentencing decision, ... [t]he sentence of death must ... be
vacated" as unreliable.
Ibid.
III
The Court today reads
Caldwell to apply only if the jury
has been "affirmatively misled regarding its role in the sentencing
process."
Ante, at 9. According to the Court, because no
information, incorrect when conveyed, was given to the jury
responsible for sentencing Romano for Sarfaty's murder, "[t]he
infirmity identified in
Caldwell is simply absent in this
case."
Ibid.
The Court rests its rendition of
Caldwell on the premise
that only a plurality of the Court's Members endorsed the principle
I regard as pivotal: Diminution of the jury's sense of
responsibility "preclude[s] the jury from properly performing its
[charge] to make an individualized determination of the
appropriateness of the death penalty." See
ante, at 8,
citing
Caldwell, 472 U. S., at 330-331, 341. In fact,
however,
22
key portions of
Caldwell that the Court attributes to a
plurality of four were joined by five of the eight Justices who
participated in that case. JUSTICE O'CONNOR parted company with the
other Members of the majority only as to a discrete,
three-paragraph section, Part IV-A (id., at 335336), in which
"[t]he Court," in her view, "seem[ed] generally to characterize
information regarding appellate review as 'wholly irrelevant to the
determination of the appropriate sentence.'"
Id., at 342
(opinion concurring in part and concurring in judgment), quoting
id., at 336. JUSTICE O'CONNOR explained that she did not read
California v.
Ramos, 463 U. S. 992 (1983), "to
imply that the giving of nonmisleading and accurate information
regarding the jury's role in the sentencing scheme is irrelevant to
the sentencing decision." 472 U. S., at 341 (emphasis deleted). It
was in that context that JUSTICE O'CONNOR stated her view, quoted
ante, at 8-9, that" 'the prosecutor's remarks were
impermissible,'" not because they referred to the existence of
postsentence review, but "because they were inaccurate and
misleading in a manner that diminished the jury's sense of
responsibility." 472 U. S., at 342.
JUSTICE O'CONNOR'S opinion thus appears to rest on "grounds
narrower" than those relied upon by the other Members of the
Court's
Caldwell majority, see
ante, at 9, only
insofar as her concurrence disavowed any implication that the
"giving of accurate instructions regarding postsentencing
procedures," 472 U. S., at 342, is irrelevant or unconstitutional.
The evidence of Romano's death sentence for the murder of Thompson,
however, was not information regarding postsentencing procedures
Romano might pursue. Nor, as the Oklahoma Court of Criminal Appeals
found, was the "Judgment and Sentence" for Thompson's murder
relevant to the Sarfaty jury's sentencing decision. 847 P. 2d, at
391 ("evidence of the imposition of the death penalty by another
jury is not relevant in determining the appropriateness
23
of the death sentence for the instant offense").4 Accordingly, I
do not read JUSTICE O'CONNOR'S concurring opinion as narrowing the
Court's
Caldwell holding with respect to the issue this case
presents. Nor, for reasons set out in the margin, do I agree with
the Court that several
post-Caldwell cases, beginning with
Darden v.
Wainwright, 477 U. S. 168 (1986),
confirm the narrow interpretation of
Caldwell the Court
announces today. See
ante, at 9.5
Finally, the Court relies, as did the Oklahoma Court of Criminal
Appeals, on the trial court's instruction to the jurors that"
'[t]he importance and worth of the evidence is for you to decide,'"
together with the court's disavowal of any
4 In its merits brief before this Court, but not in its
state-court brief or in its brief in opposition to the petition for
certiorari, the State of Oklahoma has argued that the evidence of
Romano's prior sentence may have been relevant. This belated
argument does not persuade. The only authority the State cites
holding that a prior death sentence may be relevant evidence at
sentencing is
Commonwealth v.
Beasley, 505 Pa. 279,
288, 479 A. 2d 460, 465 (1984); that case decided, purely as a
matter of state statutory construction, that the term "conviction"
could be taken to include the sentence imposed for an earlier
conviction.
5 In
Darden, the Court rejected a
Caldwell
challenge to a prosecutor's comments at the guilt phase of a
capital trial. The Court observed that the fact that the prosecutor
did not make these comments at the penalty phase "greatly reduc[ed]
the chance that they had any effect at all on sentencing." 477 U.
S., at 183-184, n. 15. Further, unlike the "Judgment and Sentence"
form in Romano's case, the comments made in
Darden were not
evidence, and the trial court told the jury so "several times."
Finally, the Court concluded that the prosecutor's comments would
have had, "[i]f anything, ... the tendency to
increase the
jury's perception of its role," not diminish it.
Ibid.
The Court also relies upon
Dugger v.
Adams,
489 U. S. 401,
407 (1989), and
Sawyer v.
Smith, 497 U. S. 227, 233
(1990). In
Adams, the Court stated that "the merit of
respondent's
Caldwell claim is irrelevant to our disposition
of the case." 489 U. S., at 408, n. 4. In
Sawyer, the
question the Court considered was not whether a
Caldwell
violation had occurred, but whether
"Caldwell announced a
new rule as defined by
Teague v.
Lane, 489 U. S. 288 (1989)," i.
e., whether
Caldwell "was ... dictated by prior
precedent existing at the time the [habeas petitioner's] conviction
became final." 497 U. S., at 229, 235.
24
view as to the appropriate punishment.
Ante, at 5. The
Court quotes the Oklahoma court's conclusion that" '[i]t was never
conveyed or intimated in any way, by the court or the attorneys,
that the jury could shift its responsibility in sentencing or that
its role in any way had been minimized.'''
Ante, at 9,
quoting 847 P. 2d, at 390.
Plainly, the trial court's instruction to consider the evidence
cannot resolve the Caldwell problem in this case: The "Judgment and
Sentence" form, bearing Romano's prior death sentence, was part of
the evidence the jury was told to consider. Further, once it is
acknowledged that evidence of the prior death sentence "could
diminish the jury's sense of importance of its role and mitigate
the consequences of [its] decision," 847 P. 2d, at 390, it cannot
be said that the court or attorneys did not "conve[y] or
intimat[e]" that the jury's role was diminished. The prosecution
proffered the death-commanding "Judgment and Sentence" as evidence,
and the trial court admitted it-over Romano's objection, and
despite his offer to stipulate to the conviction. As discussed
supra, at 18-21, admission of that evidence risked leading
jurors to "minimize the importance of [their] role," "believ[ing]
that the responsibility for determining the appropriateness of the
defendant's death rest[ed] elsewhere." Caldwell, 472 U. S., at
333,329. This risk was "unacceptable in light of the ease with
which [it] could have been minimized."
Turner v.
Murray, 476 U.
S. 28, 36 (1986) (opinion of White, J.).6
6 The State argues that any Caldwell problems were resolved,
because the "Judgment and Sentence" form stated that Romano "gave
notice of his intention to appeal from the Judgment and Sentence
herein pronounced," App. 7, and because the trial judge told the
jury, when the form was admitted, that "[Romano] has been convicted
but it is on appeal and has not become final," Tr. 45 (May 26,
1987). See Brief for Respondent 19-22. I do not find these general
references to appellate review sufficient to salvage the instant
death sentence, given the irrelevance of Romano's prior sentence to
legitimate sentencing considerations, see 847 P. 2d, at 391, and
the ease with which all Caldwell difficulty could have been
avoided.
25
IV
Permitting the jury to consider evidence that Romano was already
under sentence of death, while that jury determined whether Romano
should live or die, threatened to "minimize the jury's sense of
responsibility for determining the appropriateness of death."
Unable to say that the jury's consideration of Romano's prior death
sentence "had no effect on the [instant] sentencing decision,"
Caldwell, 472 U. S., at 341, I would vacate that decision and
remand the case for a new sentencing hearing.
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