Rehearing Denied Jan. 11, 1982.
See 454 U.S. 1165.
On petition for writ of certiorari to the Supreme Court of
Florida.
The petition for writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Because I continue to believe that the death penalty is in all
circumstances cruel and unusual punishment prohibited by
Page 454 U.S.
1037 , 1038
the Eighth and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 231, 2973 (1976), I would grant certiorari and vacate the
death sentence in this case. I would also grant certiorari on an
additional ground. This case presents the question whether the
death sentence may be imposed after conviction of a capital
offense, where the jury was not instructed as to lesser-included
noncapital offenses because the statute of limitations had run with
respect to the lesser offenses. Petitioner argues that the failure
to provide instructions on lesser- included offenses in these
circumstances is inconsistent with this Court's decisions in Keeble
v. United States,
412
U.S. 205d 844 (1973), and Beck v. Alabama,
447 U.S. 625d 392 (1980).
In my view, there is substantial merit to this claim.
Petitioner was arrested by Florida police and charged with the
capital felony of first-degree murder. He was tried by a jury.
After the submission of the evidence, the trial judge required
petitioner to choose between having the jury instructed only as to
first-degree murder, or waiving the Florida statute of limitations
with respect to the lesser- included noncapital offenses of
second-degree murder, third-degree murder, and manslaughter. The
statute had run on each of those offenses. Petitioner refused to
waive the statute of limitations. Thus, the jury was not permitted
to consider the possibility that petitioner might be guilty of some
lesser offense. After several hours of deliberations, the jury
found petitioner guilty of first-degree murder. It recommended that
he be sentenced to life imprisonment. The trial judge rejected this
recommendation and sentenced petitioner to death. The Florida
Supreme Court affirmed. It stated that instructions as to
lesser-included offenses would have been required in ordinary
circumstances. Where the statute had run on those offenses,
however, instructions were not necessary.
393 So. 2d
1119 (1981).
I am not persuaded by the Florida Supreme Court's reasoning. In
Keeble and Beck, this Court emphasized the importance of
instructions on lesser-included offenses. Keeble
Page 454 U.S.
1037 , 1039
held that an Indian prosecuted in a Federal District Court under
the Major Crimes Act of 1855 is entitled to a jury instruction on a
lesser-included offense, even though the Act did not confer federal
jurisdiction over the defendant for the lesser crime. The Court
stated:
"[I]f the prosecution has not
established beyond a reasonable doubt every element of the offense
charged, and if no lesser offense instruction is offered, the jury
must, as a theoretical matter, return a verdict of acquittal. But a
defendant is entitled to a lesser offense instruction-in this
context or any other-precisely because he should not be exposed to
the substantial risk that the jury's practice will diverge from
theory. Where one of the elements of the offense charged remains in
doubt, but the defendant is plainly guilty of some offense, the
jury is likely to resolve its doubts in favor of conviction."
Keeble, supra, 412 U.S., at 212-213-1998.
The Court did not explicitly hold that there was a due process
right to have the jury instructed on a lesser offense. It stated,
however, that if the Major Crimes Act were interpreted as
precluding such an instruction , "difficult constitutional
questions" would be raised. Id., at 213, 93 S. Ct., at 1998.
In Beck v. Alabama, the Court held that the death sentence may
not constitutionally be imposed where the jury was not permitted to
consider a verdict of guilt of a lesser-included offense. Providing
the jury with the option of convicting on a lesser-included offense
ensures that the jury will accord the defendant the full benefit of
the reasonable-doubt standard. As in Keeble, the Court chose not to
decide whether due process requires that instructions on lesser
offenses be given in every case. It stated, however, that the risk
of an unwarranted conviction cannot be tolerated in a case in which
the defendant's life is at stake.
The principles underlying Keeble and Beck would seem to apply
with just as much force where the statute of limitations on the
lesser-included offenses has run. Those cases focused
Page 454 U.S.
1037 , 1040
on the danger of an unwarranted conviction, where the jury was
given a choice only between acquittal and conviction for the
offense charged, and was not given the opportunity to consider
whether the defendant was guilty of some lesser-included offense.
This danger exists even where the statute of limitations has run
with respect to the lesser offense. Thus, I think a strong argument
can be made that the jury should be instructed as to that
offense.
A criminal defendant should not be penalized because the State
did not bring him to trial within the time prescribed by the state
legislature for lesser-included offenses. After receiving
instructions on both the offense charged and the lesser-included
offenses, the jury may render a guilty verdict on a lesser offense.
Such a verdict would reflect the jury's conclusion that, although
it believed beyond a reasonable doubt that the defendant was guilty
of criminal conduct, it had a reasonable doubt as to whether the
State had proved each element of the offense charged. At this
point, the court must decide as a matter of law whether the statute
of limitation prevents it from sentencing the petitioner for the
lesser crime. The court should not be permitted to avoid this legal
question by refusing to allow the jury to decide whether the
defendant is guilty only of a lesser offense.
The issue presented here is very similar to the issue presented
in a petition for a writ of certiorari considered by this Court
last Term. See Holloway v. Florida,
449 U.S. 905 (1980). In
that case also, the petitioner was arrested by Florida police and
charged with first-degree murder. The trial court chose not to
instruct the jury on lesser-included offenses on the grounds that
the Florida statute of limitations had run with respect to those
offenses. The jury was instructed solely as to first-degree murder.
Petitioner was convicted and sentenced to life imprisonment. The
Florida Supreme Court affirmed and this Court denied certiorari.
Justice BLACKMUN, joined by Justice BRENNAN and myself, dissented.
Justice BLACKMUN explained as follows:
Page 454 U.S.
1037 , 1041
"The Court's decisions in both Keeble and Beck imply that
affording jurors a less drastic alternative may be constitutionally
necessary to enhance or preserve their essential factfinding
function. Whether the trial court properly may enter a judgment of
guilt should the jury convict for a lesser included offense seems
to me a separate, legal matter with which the factfinder need have
no concern." Id., at 908 (footnote omitted).
In at least one respect, this case is more troubling than
Holloway. The petitioner here has been sentenced to death. Because
the court refused to instruct the jury on the lesser offenses
solely because the statute of limitations had run with respect to
those offenses, its decision to impose the death penalty was flatly
inconsistent with Beck v. Alabama.
Justice BLACKMUN, dissenting.
Because of the presence in this case of the issue concerning
petitioner's entitlement to instructions on lesser-included
noncapital offenses, I would grant the petition for certiorari and
give the case plenary consideration. See Holloway v. Florida,
449 U.S. 905
(1980) (dissenting opinion).
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