Amicus Curiae Brief — Clemons v. Mississippi

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NO. 88-6873 . xy 10

In The

SUPREME COURT OF THE seamaiain wi STATES pom

October Tern, 1988 ee

CHANDLER CLEMONS.

Petitioner,

Vv.

STATE OF MISSISSIPPI,

Respondent.

On Writ of Certiorari To The Supreme

Court of The State of Mississippi

BRIEF AMICI CURIAE SUBMITTED BY THE

STATES OF CALIFORNIA, ALABAMA,

ARIZONA, COLORADO, CONNECTICUT,

DELAWARE, IDAHO, ILLINOIS, INDIANA,

KENTUCKY, LOUISIANA, MISSOURI,

NEVADA, NEW JERSEY, NEW MEXICO NORTH

CAROLINA, OHIO, SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, VIRGINIA,

UTAH, AND WYOMING

JOHN K. VAN DE KAMP

Attorney General

RICHARD B. IGLEHART

Chief Assistant Attorney

General

JOHN H. SUGIYAMA

Senior Assistant Attorney

General

RONALD S. MATTHIAS

Deputy Attorney General

DANE R. GILLETTE

Deputy Attorney General

[Attorney of Record]

350 McAllister St., Rm. 6000

San Francisco, CA 94102

Telephone: (415) 557-1475

DON SIEGELMAN

Attorney General of Alabama

Office of the Attorney General

64 North Union Street

Montgomery, Alabamba 36130

ROBERT K. CORBIN

Attorney General of Arizona

Office of the Attorney General

State Capitol

Phoenix, Arizona 85007

DUANE WOODARD

Attorney General of Colorado

Office of the Attorney General

1525 Sherman Street, Second Floor

Denver, Colorado 80203

JOHN J. KELLY

Chief State’s Attorney of Connecticut

Office of the Chief State’s Attorney

340 Quinnipiac Street

Wallingford, Connecticut 06492

CHARLES M. OBERLY, III

Attorney General of Delaware

Department of Justice

820 N. French Street, 8th Floor

Wilmington, Delaware 19801

JAMES T. JONES

Attorney General of Idaho

Office of the Attorney General

State House

Boise, Idaho 83720

NEIL F. HARTIGAN

Attorney General of Illinois

Office of the Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

LINLEY E. PEARSON

Attorney General of Indiana

Office of the Attorney General

219 State House

Indianapolis, Indiana 46204

FREDERIC J. COWAN

Attorney General of Kentucky

Office of the Attorney General

State Capitol

Frankfort, Kentucky 40601

WILLIAM J. GUSTE, JR.

Attorney General of Louisiana

Office of the Attorney General

234 Loyola Building

New Orleans, Louisiana 70804

WILLIAM L. WEBSTER

Attorney General of Missouri

Office of the Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

BRIAN MCKAY

Attorney General of Nevada

Office of the Attorney General

Capitol Complex

Carson City, Nevada 89710

PETER N. PERRETTI, JR.

Attorney General of New Jersey

Office of the Attorney General

25 Market Street

Trenton, New Jersey 08625

HAL STRATTON

Attorney General of New Mexico

Office of the Attorney General

P.O. Drawer 1508

Santa Fe, New Mexico 87504

LACY H. THORNBURG

Attorney General of North Carolina

Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

Office of the Attorney General

State Office Tower

Columbus, Ohio 43215

T. TRAVIS MEDLOCK

Attorney General of South Carolina

Office of the Attoraey General

P.O.Box 11549

Columbia, South Carolina 29211

ROGER A. TELLINGHUISEN

Attorney General of South Dakota

Office of the Attorney General

State Capitol

Pierre, South Dakota 57501

CHARLES W. BURSON

Attorney General of Tennessee

Office of the Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

MARY SUE TERRY

Attorney General of Virginia

Office of the Attorney General

101 N. 8th Street

Richmond, Virginia 23219

R. PAUL VAN DAM

Attorney General of Utah

Office of the Attorney General

236 State Capitol

Salt Lake City, Utah 84114

JOSEPH B. MEYER

Attorney General of Wyoming

Office of the Attorney General

123 Capitol Building

Cheyenne, Wyoming 82002

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

THE EIGHTH AMENDMENT DOES

NOT REQUIRE THE REVERSAL

OF A DEATH SENTENCE SIMPLY

BECAUSE AN AGGRAVATING

CIRCUMSTANCE IS INVALIDATED

IF THE STATE COURT,

PURSUANT TO ITS APPLICABLE

HARMLESS ERROR ANALYSIS,

CONCLUDES THAT THE DEFENDANT

WAS NOT PREJUDICED.

CONCLUSION

ii.

TABLE OF A RITIE

Case

Baldwin v. State

456 So.2d 117 (Ala.Crim.App. 1983)

Barclay v. Florida

463 U.S. 939 (1983)

Boutwell v. State

659 P.2d 322 (Okla. Crim. 1983)

Brown v. State

753 P.2d 908 (Ckla. Crim. 1988)

Cabana v. Bullock

474 U.S. 376 (1986)

Castro v. State

749 P.2d 1146 (Okla. Crim. 1987)

Chapman v. California

386 U.S. 18 (1967)

Clemons v. Mississippi

U.S. 109 S.Ct. 3184 (1989)

Clemons v. State

535 So.2d 1354 (Miss. 1988)

Coleman v. Saffle

869 F.2d 1377 (10th Cir. 1989)

Collins v. Lockhart

754 F.2d 258 (8th Cir. 1985)

Commonwealth v. Aulisio

514 Pa. 84, 522 A.2d 1075 (1987)

Pages

iii.

Commonwealth v. Smith

518 Pa. 15, 540 A.2d 246 (1988)

Flamer v. State

490 A.2d 104 (Del. 1983)

Foster v. State

258 Ga. 736, 374 S.E.2d 188 (1988)

Franklin v. Lynaugh

U.S. , 108 S.Ct. 2320, n. 12

Gregg v. Georgia

428 U.S. 153 (1976)

Hopkinson v. State

632 P.2d 79 (Wyo. 1981)

Johnson v. Mississippi

U.S. , 108 S.Ct. 1981 (1988)

Lindsey v. Thigpen

875 F.2d 1509 (llth Cir. 1989)

Lockett v. Ohio

438 U.S. 586 (1978)

Maynard v. Cartwright

U.S. , 108 S.Ct. 1853 (1988)

Mercer v. Armontrout

844 F.2d 582 (8th Cir. 1988)

Mitchell v. State

527 So.2d 179 (Fla. 1988)

Moran v. State

734 P.2d 712 (Nev. 1987)

Neuschafer v. Whitley

816 F.2d 1390 (9th Cir. 1987)

iv.

Nguyen v. State

769 P.2d 167 (Okla. Crim. 1988)

People v. Anderson

43 Cal.3d 1104, 742 P.2d 1306,

240 Cal.Rptr. 585 (1987)

People v. Bittaker

48 Cal.3d 1046, 774 P.2d 659,

259 Cal.Rptr. 630 (1988)

People v. Brown

46 Cal.3d 432, 758 P.2d 1135,

250 Cal.Rptr. 604 (1988)

People v. McLain

46 Cal.3d 97, 757 P.2d 569,

249 Cal.Rptr. 630 (1988)

People v. Murtishaw

48 Cal.3d 1001, 773 P.2d 172,

258 Cal.Rptr. 821 (1989)

People v. Sheldon

48 Cal.3d 935, 771 P.2d 1330,

258 Cal.Rptr. 242 (1989)

Proffitt v. Florida

428 U.S. 242 (1976)

Pulley v. Harris

465 U.S. 37 (1984)

Rose v. Clark

478 U.S. 570 (1986)

Satterwhite v. Texas

oF , 108 S.Ct. 1792 (1988)

Scott v. State

297 Md. 235, 465 A.2d 1126 (1983)

Skull v. State

533 So.2d 1137 (Fla. 1988)

Spaziano v. Florida

468 U.S. 447 (1984)

State v. Bobo

727 S.W.2d 945 (Tenn. 1987)

State v. Irwin

304 N.C. 93, 282 S.E.2d 439 (1981)

State v. Johns

679 S.W.2d 253 (Mo. 1984)

State v. Jones

288 S.C. 1, 340 S.E.2d 782 (1985)

State v. Penix

32 Ohio St.3d 369,

513 N.E.2d 744 (1987)

State v. Poland

144 Ariz. 412, 698 P.2d 207 (1985)

State v. Tassin

536 So.2d 402 (La. 1988)

State v. Taylor

304 N.C. 249, 283 S.E.2d 761 (1981)

Stouffer v. State

742 P.2d 562 (Okla. Crim. 1987)

Stout v. Commonwealth

237 Va. 126, 376 S.E.2d 288 (1989)

vi.

Strickland v. Washington

466 U.S. 668

Stringer v. Jackson

862 F.2d 1108 (5th Cir. 1988)

Wade v. State

258 Ga. 324, 368 S.E.2d 482 (1988)

Wainwright v. Goode

464 U.S. 78 (1983)

Whitmore v. Arkansas

No. 88-7146

cert. granted July 3, 1989

Wilson v. State

295 Ark. 682, 751 S.W.2d 734 (1988)

Woodson v. North Carolina

428 U.S. 280 (1976)

Zant v. Stephens

462 U.S. 862 (1983)

Constitutional Provisions

United States Constitution

Eighth Amendment

Statutes

42 Pa. Cons. Stat. Ann.

9711(h)(3)(ii) (Purdon)

NO. 88-6873

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1988

CHANDLER CLEMONS,

Petitioner,

Vv.

STATE OF MISSISSIPPI,

Respondent.

On Writ of Certiorari To The Supreme

Court of The State of Mississippi

INTEREST OF AMICI AE

Amici curiae are states which have

authorized the imposition of death as a

potential penalty in specified homicide

cases. Each state automatically provides,

or makes available, some form of appellate

review following a judgment of death. In

reliance upon this Court’s assurance that

there is no “right way for a State to set

up its capital sentencing scheme, ”

Spaziano v. Florida, 468 U.S. 447, 464

(1984), the states have taken a variety of

approaches with respect to the scope of

and procedures applicable to such review.

A number have concluded that the

invalidation of one or more aggravating

factors does not necessarily compel the

reversal of a death sentence. Rather,

some form of harmless error analysis is

appropriate. The argument presented by

petitioner Clemons, if accepted by this

Court, could thus jeopardize a substantial

number of capital judgments in several

states. It would substantially erode the

authority of the states to enforce and

monitor their capital punishment

statutes .1/ :

1. The sole question upon which this

Court granted certiorari, Clemons v.

Mississippi, __. U-S- _» 109 S.Ct. 3184

(1989), was presented in the petition as

follows: "Does the Eighth Amendment

permit an appellate court to save a4

sentence of death by reweighing

aggravating and mitigating factors where

the authority for capital sentencing under

state law rests exclusively with the

jury?” In the brief on the merits,

however, petitioner argues at some length

that the Mississippi Supreme Court has

inadequately narrowed the state's

“especially heinous, atrocious or cruel”

aggravating circumstance. Amici limit our

discussion to the specific issue

presented, namely the authority under the

Eighth Amendment for a state court to

affirm a death judgment, assuming the

presence of an invalid aggravating

circumstance. Other points raised by

petitioner are dealt with in Mississippi’s

SUMMARY OF ARGUMENT

Once a state has decided to enact a

capital punishment scheme, it is primarily

responsible for interpreting and enforcing

those statutes. This includes appellate

review of death judgments. Although a

state may decide that penalty phase errors

require reversal of the death sentence,

the Eighth Amendment does not compel such

a conclusion. Reversal of one or more

aggravating circumstances does not mandate

a new sentencing hearing. The state court

may apply harmless error analysis and

ene: based on other proven aggravating

Cl ecumetanees and the inadequacy of any

mitigation, that the death verdict is

nevertheless reliable and should be

affirmed.

This Court has previously upheld the

authority of the states to affirm death

judgments despite the invalidation of an

aggravating circumstance. See, e.g., Zant

v. Stephens, 462 U.S. 862 (1983); Barclay

v. Florida, 463 U.S. 939 (1983);

Wainwright v. Goode, 464 U.S. 78 (1983).

It specifically invited Oklahoma to

undertake such an analysis, if permitted

by state law, in Maynard v. Cartwright,

U.S. __, 108 S.Ct. 1853 (1988). The

brief on the merits.

position urged by petitioner is not only

inconsistent with these cases, it would

effectively preclude the states from

enforcing their capital judgments despite

a determination that any error could not

have prejudiced the defendant. Although

the “evaluation of the consequences of an

error in the sentencing phase of a capital

case may be more difficult because of the

discretion that is given to the

sentencer,” Satterwhite v. Texas, ___—iU~.S.

__, 108 S.Ct. 1792, 1798 (1988), it is not

impossible. State courts should be

allowed to determine whether any error was

harmless, and if so, to affirm the

sentence of death.

ARGUMENT

THE EIGHTH AMENDMENT DOES NOT REQU

IRE

THE REVERSAL OF A DEATH SENTENCE SIMPLY

BECAUSE AN AGGRAVATING CIRCUMSTANCE IS

INVALIDATED IF THE STATE COURT, PURSUANT

TO ITS APPLICABLE HARMLESS ERROR

ANALYSIS, CONCLUDES THAT THE DEF

WAS NOT PREJUDICED. ee

This Court has consistently

emphasized the need for reliability in the

imposition of death sentences. See, e.g.,

Johnson v. Mississippi, ___ U.S. ___, 108

S.Ct. 1981, 1986 (1988); Lockett v. Ohio,

438 U.S. 586, 604 (1978); Woodson v. North

Carolina, 428 U.S. 280, 305 (1976). It

has also noted the important role provided

by state appellate review in ensuring

reliability, while recognizing the variety

of forms such review might take. See,

e.g., Pulley v. Harris, 465 U.S. 37, 53

(1984); Proffitt v. Florida, 428 U.S. 242

253 (1976); Gregg v. Georgia, 428 U.S.

153, 206 (1976) .2

In Zant v. Stephens, supra, 462 U.S.

at 890, this Court relied upon the

“important procedural safeguard” of state

’

2. The Court has not had o

decide whether appellate review np

sentences is required by the Eighth

Amendment. That issue is now pending

before the Court in Whitmore v. Arkansas

No. 88-7146, cert. granted July 3, 1989.

appellate review in holding that “the

subsequent invalidation of one of several

statutory aggravating circumstances does

not automatically require reversal of the

death penalty... .” Under Georgia law

the jury does not give any special weight

tc aggravating circumstances; their

function is to narrow the class of persons

eligible for the death penalty rather than

to guide the sentencer’s exercise of its

discretion. 462 U.S. at 873-874. The

Court declined to express any opinion on

whether it would reach a different result

under a statutory scheme which

specifically required the sentencer to

weigh aggravating and mitigating

circumstances in deciding whether to

impose death. Id. at 890.

Petitioner Clemons seizes upon the

reservation in Zant to argue that in a

“weighing state,” such as Mississippi,

invalidation of any aggravating factor

compels reversal of the death judgment.

Amici urge rejection of petitioner's

argument for several reasons: (1) opinions

of this Court subsequent to Zant, but

ignored by petitioner, permit the

reweighing of aggravating and mitigating

factors by appellate courts; (2) the

distinction between statutory schemes

mentioned in Zant has been given virtually

no continuing legal significance; and (3)

a substantial number of the state

appellate courts which have considered

this issue in light of their statutory

schemes and this Court’s decisions have

found that reversal of an aggravating

factor does not necessarily compel a new

sentencing hearing.

In Barclay v. Florida, supra, 463

U.S. at 939, the Court relied upon Zant in

affirming a Florida death sentence despite

the state trial court’s consideration of

an aggravating factor that was prohibited

by state law. The Court noted that the

Florida statute, unlike the Georgia

procedures at issue in Zant, requires the

sentencer “to balance statutory

aggravating circumstances against all

mitigating circumstances ....” 463

U.S. at 954. It nevertheless found “no

reason why the Florida Supreme Court

cannot examine the balance struck by the

trial judge and decide that the

elimination of improperly considered

aggravating circumstances could not .

possibly affect the balance.” Jd. at 958.

The Court subsequently relied upon Barclay

to uphold the Florida Supreme Court's

“independent reweighing of the aggravating

and mitigating circumstances” and

affirmance of a death judgment despite the

trial court’s consideration of improper

aggravation. Wainwright v. Goode, supra,

464 U.S. at 87.

Zant, Barclay, and Goode involved

aggravating circumstances which, although

improper under state law, were not

precluded by the United States

Constitution. In Maynard v. Cartwright,

supra, 108 S.Ct. at 1859, the Court found

that Oklahoma's “especially heinous,

atrocious, or cruel” aggravating

circumstance was unconstitutionally vague.

The sentencing jury had also found a

second, unchallenged aggravating

circumstance. This Court concluded that

the Oklahoma Court of Criminal Appeais

should decide whether that circumstance

was sufficient under state law to affirm

the death judgment, or whether a new

sentencing hearing should be conducted.

Id. at 1860.2/ Not surprisingly, the

Mississippi Supreme Court relied upon

Maynard in affirming petitioner's death

sentence despite an arguably invalid

heinous and atrocious aggravating

circumstance. Clemons v. State, 535 So.2d

1354, 1362-1363 (Miss. 1988).

~*~

3. By decisional law, the Oklahoma

court had recently expanded its authority

to affirm a death judgment despite the

invalidation of an aggravating

circumstance. These Oklahoma cases are

discussed below.

The admission of improper

aggravation was also considered in Johnson

v. Mississippi, ___ U.S. ___, 108 S.Ct.

1981 (1988). There the jury found as one

of three aggravating circumstances

supporting the death penalty that the

defendant was previously convicted of a

felony involving the use or threat of

violence. That prior conviction had

occurred in New York but was reversed by

reaps courts of that state subsequent to the

Mississippi trial. This Court reversed

the death judgment, noting that the

Mississippi jury knew of the New York

conviction but not about any of the facts

upon which it was based. 108 S.Ct. at

hee The Court also observed that the

Mississippi Supreme Court had expressly

refused to undertake a harmless error

analysis, in part because of the emphasis

placed on the prior conviction by the

prosecutor. Id. at 1988-1989 & n. 8.

“{[Mjore importantly, the error here

extended beyond the mere invalidation of

an aggravating circumstance supported by

evidence that was otherwise admissible.”

id. at 1989. Two members of the Court

commented, however, that the Mississippi

~prene Court could still “undertake[] to

sbestniatcte the two untainted aggravating

Clscenenaneey against the mitigating

circumstances” in deciding whether a new

10.

sentencing hearing was required. Id. at

1989 (White, J., concurring).

This Court has reiterated in recent

terms that cases in which harmless error

analysis will not apply “are the exception

and not the rule.” Rose v. Clark, 478

U.S. 570, 578 (1986). The Court has

expressly applied such analysis to the

admission of evidence in violation of the

Sixth Amendment at the sentencing phase of

a capital case. Satterwhite v. Texas,

supra, 108 S.Ct. at 1798; see also Cabana

vy. Bullock, 474 U.S. 376 (1986) (factual

findings required by the Eighth Amendment

can be made by the state trial or

appellate courts); Strickland v.

Washington, 466 U.S. 668, 695 (ineffective

assistance of counsel in the penalty phase

of a capital case does not require

reversal unless “there is a reasonable

probability that, absent the errors, the

sentencer . . would have concluded that

the balance of aggravating and mitigating

circumstances did not warrant death").

The cases authorizing affirmance of a

death sentence despite the reversal of

some aggravating circumstances are

consistent with this trend.

Barclay, Maynard, and Jolinson

undermine petitioner's reliance on the

question reserved in Zant. Moreover, the

legal significance of any distinction

ll.

between statutes which expressly require

see weighing of aggravating and mitigatin

circumstances and those which do not has :

been Substantially eliminated. As the

Court noted in Franklin v. Lynaugh

v+S+ 1 108 S.Ct. 2320, 2331, i

the differences between the two wed

may be even less than it appears at eel

examination.” See Coleman vy. Saffle, 869

F.2d 1377, 2388 (10th Cir. 1989).

| The Fifth Circuit, in a post-Maynard

examination of Mississippi law, recent]

concluded that there is “no differenc :

ome than one in semantics, between a

anetructing a jury to weigh aggravatin

against mitigating circumstances in ,

determining the sentence and instructing a

yey to consider all aggravating and :

mitigating circumstances in deciding on

the sentence. ” Stringer v. Jackson, 862

hie 1108, 1115 (5th Cir. 1988). we a

with this evaluation. Amici submit fica

whatever procedure a state may follow i

determining whether death is the a

“ppropriate punishment, it is entitled to

peieeael the judgments for prejudice and t

affirm a death sentence despite the ‘

sasibvienindnan consideration of aggravatin

evidence or circumstances if such aaa

was harmless. .

The application of harmless error

analysis to the penalty phase is best left

12.

to the courts of the individual states.

Some courts have concluded that a retrial

is necessary following the reversal of an

aggravating circumstance, even if other,

valid circumstances remain. See, @.g.,

Wilson v. State, 295 Ark. 682, 751 S.W.2d

734, 737-739 (1988); Hopkinson v. State,

632 P.2d 79, 171-172 (Wyo. 1981).

Until recently, the Oklahoma Court

of Criminal Appeals took a similarly

restrictive view of its authority, and

reversed the entire death sentence when

any aggravating circumstance was reversed.

See Boutwell v. State, 659 P.2d 322, 329

(Okla. Crim. 1983). In Stouffer v. State,

742 P.2d 562, 564-565 (Okla. Crim. 1987),

however, the state court concluded that

its refusal to apply harmless error

analysis was “unnecessarily deferential in

light of the authority and responsibility

given [the] Court by the Legislature to

review capital sentences.” Upon reversal

of an aggravating circumstance, the

Oklahoma court will now reweigh the

remaining aggravating circumstances with

any mitigating circumstances, and will

affirm when there is no reasonable

probability of a different result. Nguyen

v. State, 769 P.Zd 167, 174-175 (Okla.

Crim. 1988); Castro v. State, 749 P.2d

1146, 1147-1148 (Okla. Crim. 1987).

13.

Oklahoma’s position is in line with

those of a substantial number of other

death penalty states. Those courts have

affirmed death judgments despite a finding

that one or more aggravating cir:umstances

were improper. See, e.g., Baidwin v.

State, 456 So.2d 117, 125-128

(Ala.Crim.App. 1983), aff'd Ex parte

Baldwin, 456 So.2d 129, 140 (Ala. 1984)

(Conssenentsen of nonstatutory aggravating

circumstance was harmless in light of

remaining valid circumstances); State v.

Poland, 144 Ariz. 412, 698 P.2d 207, 210-

211 (1985) (one aggravating circumstance

remained; mitigation was insignificant) ;

People v. Bittaker, 48 Cal.3d 1046, 1102-

1103, 774 P.2d 659, 691-692, 259 Cal.Rptr.

630, 662-663 (1988) (a single valid

special circumstance finding is sufficient

to render defendant eligible for the death

penalty; since there were at least 14

valid special circumstances, even if other

24 were invalid, defendant could not have

been prejudiced); Flamer v. State, 490

A.2d 104, 135-136 (Del. 1983) (presence of

invalid aggravating circumstance was

harmless); Mitchell v. State, 527 So.2d

site 182 (Fla. 1988) (three aggravating

circumstances remained; no mitigation);

Foster v. State, 258 Ga. 736, 374 S.E.2d

188, 196-197 (1988) (assuming invalidity

of one aggravating circumstance, remaining

14.

circumstance was supported by the record

and justified the death sentence); State

v. Tassin, 536 So.2d 402, 412 (La. 1988)

(reversed aggravating factor did not

inject an arbitrary factor into the

proceedings); Clemons v. State, supra, 535

So.2d at 1362 (one remaining valid

aggravating factor will support the death

penalty); State v. Johns, 679 S.W.2d 253,

267 (Mo. 1984) (judgment may be affirmed

so long as as one aggravating factor

remains); State v. Taylor, 304 N.C. 249,

283 S.E.2d 761, 784-785 (1981) (use of

inadmissible evidence to support

aggravating circumstance did not

compromise the statutory weighing

process); Commonwealth v. Smith, 518 Pa.

15, 540 A.2d 246, 262 (1988) (one

aggravating circumstance remained; no

mitigation); State v. Jones, 288 S.C. l,

340 S.E.2d 782, 783-784 (1985) (assuming

two out of five aggravating circumstances

were improper, any one valid factor would

support the imposition of death); State v.

Bobo, 727 S.W.2d 945, 955-956 (Tenn. 1987)

(two of three aggravating factors

remained; little evidence of mitigation) ;

Stout v. Commonwealth, 237 Va. 126, 376

S.E.2d 288, 292 (1989) (the invalidity of

one aggravating circumstance does not

require reversal so long as at least one

valid circumstance remains).

15.

The federal courts have recognized

that the application of harmless error

when aggravating circumstances have been

reversed is primarily an issue of state

law. For example, the Eighth Circuit

reversed an Arkansas death sentence

because there was no provision for saving

it under state law after an aggravating

circumstance had been invalidated.

Collins v. Lockhart, 754 F.2d 258, 267-

268 (8th Cir. 1985). The same court

affirmed a Missouri judgment, however,

because state law did not mandate reversal

simply because one aggravating factor was

reversed. Mercer v. Armontrout, 844 F.2d

582, 584 (8th Cir. 1988). See also

Coleman v. Saffle, supra, 869 F.2d at

1387-1390; Lindsey v. Thigpen, 875 F.2d

1509, 1515 (llth Cir. 1989) (assuming

invalidity of one aggravating

circumstance, under Alabama law three

remaining factors plus no mitigation

rendered any error harmless); Stringer v.

Jackson, supra, 862 F.2d at 1113-1115;

Neuschafer v. Whitley, 816 F.2d 1390, 1393

(9th Cir. 1987) (under Nevada law, the

death judgment was adequately supported by

valid aggravating factors and no

mitigation).

A number of state courts have held,

as did this Court in Satterwhite v. Texas,

Supra, 108 S.Ct. at 1798, that penalty

16.

phase errors, including but not limited to

those involving the review of aggravating

circumstances, are subject to review for

prejudice. The California Supreme Court

in particular has carefully distinguished

between errors of federal constitutional

dimension and those which are strictly a

violation of state law. In People v.

Brown, 46 Cal.3d 432, 758 P.2d 1135, 250

Cal.Rptr. 604 (1988), the court recognized

that the importance of insuring

reliability in death sentences does not

compel a reversal on the mere possibility

that penalty phase error was prejudicial.

46 Cal.3d at 448, 758 P.2d at 1145, 250

Cal.Rptr. at 614-615. “Instead, when

faced with penalty phase error not

amounting to a federal constitutional

violation, [the court] will affirm the

judgment unless [it] conclude[s] there is

a reasonable (i.e., realistic) possibility

that the jury would have rendered a

different verdict had the error or errors

not occurred.” Id.*! See also, People v.

4. There is “little, if any,

difference between” the reasonable

possibility test of Brown and the beyond a

reasonable doubt test adopted by this

Court for federal constitutional

violations. Chapman v. California, 386

U.S. 18, 24 (1967). North Carolina also

applies a reasonable possibility test to

sentencing phase errors. State v. Irwin,

17.

Sheldon, 48 Cal.3d 935, 950-952, 771 P.2d

1330, 1338-1339, 258 Cal.Rptr. 242, 250-

251 (1989) (improper admission of

aggravating evidence); People v. McLain,

46 Cal.3d 97, 109, 757 P.2d 569, 575, 249

Cal.Rptr. 630, 636 (1988) (under Chapman

the improper exclusion of mitigating

evidence was harmless).

The determination by state courts

that sentencing error is properly subject

to harmless error analysis is tempered by

their recognition of the need to review

death judgments carefully and reverse when

the error affects the reliability of the

result. See, e.g., People v. Anderson, 43

Cal.3d 1104, 1150-1151, 742 P.2d 1306,

1333, 240 Cal.Rptr. 585, 613 (1987); Skull

v. State, 533 So.2d 1137, 1143 (Fla.

1988); Wade v. State, 258 Ga. 324, 368

S.E.2d 482, 488-489 (1988); Scott v.

State, 297 Md. 235, 465 A.2d 1126, 1135-

1136 (1983); Moran v. State, 734 P.2d 712

(Nev. 1987); State v. Irwin, 304 N.C. 93,

282 S.E.2d 439, 448-449 (1981); Brown v.

State, 753 P.2d 908, 913 (Okla. Crim.

1988); Commonwealth v. Aulisio, 514 Pa.

84, 522 A.2d 1075, 1080 (1987). Indeed,

State courts have accepted the

responsibility for reversing death

304 N.C. 93, 282 S.E.2d 439, 448-449

(1981).

18.

judgments even when state law precludes a

new sentencing trial. State v. Penix, 32

Ohio St.3d 369, 513 N.E.2d 744, 747-748

(1987) .

It is clear from a review of the

cases that state appellate courts

“scrutinize the penalty phase of capital

trials with considerable care... ."

People v. Murtishaw, 48 Cal.3d 1001, 1028,

773 P.2d 172, 189, 258 Cal.Rptr. 821, 838

(1989). The truth of that observation is

not undermined (indeed, it is

affirmatively demonstrated) when death

judgments are affirmed despite the

existence of penalty phase error. Nothing

in the Eighth Amendment precludes the

state from affirming the sentence of death

when that result is otherwise reliable.

5. Until recently, the Pennsylvania

Supreme Court was compelled to remand for

imposition of a life sentence whenever it

vacated a death judgment. Commonwealth v.

Aulisio, 514 Pa. 84, 522 A.2d 1075, 1080

(1987). The statutes were amended in 1988

to authorize the granting of a new

sentencing hearing. 42 Pa. Cons. Stat.

Ann. § 9711(h)(3)(ii) (Purdon).

CONCLUSION

For the reasons stated above, Amici

respectfully submit that the judgment of

the Mississippi Supreme Court should be

affirmed.

DATED: October 30, 1989

Respectfully submitted,

JOHN K. VAN DE KAMP

Attorney General

RICHARD B. IGLEHART

Chief Assistant Attorney

General

JOHN H. SUGIYAMA

Senior Assistant Attorney

General

RONALD S. MATTHIAS

Deputy A torney Genera

DANE R. GILLETTE

Deputy Attorney General

[Attorney of Record]

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