# Amicus Curiae Brief — Clemons v. Mississippi

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0555%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 738

## Text

Leys
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

i.
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

15

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

14

10

13

12

14

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)

11

10

1l

12

12

10

13

12

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)

10

13

10

12

13

14

13

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)

13

13

1l

13

11

ll

14

10

11

11

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

Sd

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)

13

14

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

2.

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

3.
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.

4.

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.

6.

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)

we

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

8.

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.

9.

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).

te

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0555%3A09. Public record. Not legal advice.