Amicus Curiae Brief — Stringer v. Black

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No. 90-6616

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1991

JAMES R. STRINGER,

Petitioner,

Vv.

LEE ROY BLACK, COMMISSIONER,

MISSISSIPPI DEPARTMENT OF

CORRECTIONS, ET AL..,

Respondents.

On Writ Of Certiorari to the United States

Court Of Appeals For The Fifth Circuit

BRIEF AMICUS CURIAE OF THE STATES OF

TEXAS, ALABAMA, ARIZONA, CALIFORNIA,

INDIANA, KENTUCKY, MISSOURI, MONTANA,

NEVADA, NORTH CAROLINA, OKLAHOMA,

PENNSYLVANIA, VIRGINIA, AND WYOMING IN

SUPPORT OF RESPONDENT

DAN MORALES DANA E, PARKER

Attorney General of Texas Assistant Attorney General

WILL PRYOR MARGARET PORTMAN GRIFFEY*

First Assistant Assistant Attorney General

Attorney General

P. O. Box 12548, Capitol Station

MARY F. KELLER Austin, Texas 78711

Deputy Attorney General (512) 463-2080

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division *Counsel of Record

ATTORNEYS FOR AMICI

The Honorable James H. Evans

Attorney General of Alabama

11 South Union Street

Montgomery, Alabama 36130

The Honorable Grant Woods

Attorney General of Arizona

1275 West Washington St.

Phoenix, Arizona 85007

The Honorable Daniel Lungren

Attorney General of California

1515 K Street

Sacramento, California 94224-2550

The Honorable Linley E. Pearson

Attorney General of Indiana

219 State House

Indianapolis, Indiana 46204

The Honorable Frederic J. Cowan

Attorney General of Kentucky

Capital Building

Frankfort, Kentucky 40601

The Honorable William B. Webster

Attorney General of Missouri

P.O. Box 899

Jefferson City, Missouri 65102

The Honorable Marc Raciot

Attorney General of Montana

215 North Sanders

Helena, Montana 59620-1401

OO

The Honorable Frankie Sue Delpapa

Attorney General of Nevada

Heroes Memorial Building

Capitol Complex

Carson City, Nevada 89710

The Honorable Lacy H. Thornburg

Attorney General of North Carolina

Department of Justice

2 East Morgan Street

Raleigh, North Carolina 27602

The Honorable Susan B. Loving

Attorney General of Oklahoma

112 State Capitol

Oklahoma City, Oklahoma 73105

The Honorable Ernest D. Preate, Jr.

Attorney General of Pennsylvania

Stawberry Square - 16th Floor

Harrisburg, Pennsylvania 17120

The Honorable Mary Sue Terry

Attorney General of Virginia

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219 |

ecu tea, st LA A LE

The Honorable Joseph B. Meyer

Attorney General of Wyoming

123 Capitol Building

Cheyenne, Wyoming 82002

il.

QUESTIONS PRESENTED

Whether the rule of Maynard |

Cartwright, 486 U.S. 356 (1988), is a “new

rule" that cannot be applied retroactively

in collateral review?

Whether Clemons v. Mississippi, 494 U.S

1108S. Ct. 1441 (1990), is a “new rule

that cannot be applied retroactively in

collateral review?

cae

TABLE OF CONTENTS |

Page

QUESTIONS PRESENTED................... i

TABLE OF AUTHORITIES.................. iv

ee IN 6s 6 5 00 6456 a 0 ODE RES 2

STATEMENT OF FACTS AND

CETTE TC ee eee ee 2

SUMMARY OF ARGUMENT.............. 4

STE 6 6 0 hs ee waiwe 2 0ksa ee aeies 6

1. THE COURT'S DECISION IN MAYNARD

V. CARTWRIGHT WAS NOT DICTATED

BY EXISTING PRECEDENT............. 8

A. The constitutionally required nar-

rowing function is accomplished by

the finding of one aggravating

OP eee 10

B. Barclay and Stephens support the

conclusion that, if the constitution-

ally required narrowing has been

accomplished by a valid aggrava-

ting circumstance, the Eighth

Amendment is not violated by the

jury's consideration of non-statutory

aggravating circumstances that en-

compass aspects of the defendant's

character or background or the

circumstances of the offense........ . 14

C. Regardless whether Godfrey

"controlled" the disposition of

Cartwright, it did not dictate the

conclusion that the aggravating

factor was unconstitutionally

applied in Cartwright's case or that

his death sentence violated the

Fighth Amendment.............. 17

I. NO SUPREME COURT PRECEDENT

COMPELLED THE DECISION IN

CLEMONS V. MISSISSIPPI.............

ee P| ee ae ee ee

CERTIFICATE OR SERVICE................

TABLE OF AUTHORITIES

Cases Page

Barclay v. Florida, 463 U.S. 973 (1983)....... passim

Butler v. McKellar, 494 U.S. __, 110 S. Ct. 1212

Pe sare y eee ae es a eS ea ee oe 6, 7 8

California v. Ramos, 463 U.S. 992 (1983). ..... 14,18

Clemons v. Mississippi, 494 U.S. __, 110 S. Ct.

ae a ie 6 Ee 6 a eine ho onl passim

Coleman v. Saffle, 852 F.2d 1377 (10th Cir.

Dee cc teehee eke nese eeev bb eed bolees 15

Eddings v. Oklahoma, 455 US. 104

Ee eee ee ee passim

Godfrey v. Georgia, 446 U.S. 420 (1980)...... passim

Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988)... . . 15

Lesko v. Owens, 881 F.2d 44 (3rd Cir. 1989)....... 15

Lockett v. Ohio , 438 U.S. 536 (1978)... .. 5, 6, 21, 22

Lowenfield v. Phelps, 484 U.S. 231 (1988). ...... 9,13

Mackey v. United States, 401 U.S. 667 (1971)....... 6

Maynard ov. Cartwright, 486 U.S. 356

a eee ee re eee ee passim

Parker v. Dugger, __ U.S. __, 111 S. Ct. 731

RR An ee i ane ene 9 a 19

Payne v. Tennessee, ___ U.S. __, 111 S. Ct. 2597

IS a ere iae eee ia a eS aw eee i. Be 20

Penry v. Lynaugh, 492 U.S. 302 (1989)........... 6

People v. Rodriguez, 794 P.2d 965 (Colo. 1990). .... 15

Robins v. State, 798 P.2d 558 (Nev.1990)........ 15

Saffle v. Parks, 494 U.S. __, 110 S. Ct. 1257

I Ed acts Aah A eben ele sn hee eek ae le 6, 7, 21

Sawyer v. Smith, 497 U.S. __, 110 S. Ct. 2822

Ss 56 bo Skins a 08 5 84.06 owe SOOO BK O88 7

State v. Gardner, 789 P.2d 273 (Utah 1989)....... 15

State v. Reeves, 234 Neb. 711, 453 N.W.2d 359

TT hee doen ti anes oe Dak aks ae Ne oe 15

State v. Rose, 112 N.J. 454, 548 A.2d 1058

RIEL) See OPA me 2 Nar ete yes n'a e oO oe eA 15

State v. Wille, 559 So.2d 1321 (La. 1990)......... 15

Teague v. Lane, 489 U.S. 288 (1989)........ 2,6, 7

Zant v. Stephens, 462 U.S. 862 (1983)....... passim

Constitutions and Rules

8 Ss here passim

SuP. CT. R. 37.5... . , . ee 2

No. 90-6616

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1991

JAMES R. STRINGER,

Petitioner,

Vv.

LEE ROY BLACK, COMMISSIONER,

MISSISSIPPI DEPARTMENT OF

CORRECTIONS, ET AL.,

Respondents.

On Writ Of Certiorari to the United States

Court Of Appeals For The Fifth Circuit

BRIEF AMICUS CURIAE OF THE STATES OF

TEXAS, ALABAMA, ARIZONA, CALIFORNIA,

INDIANA, KENTUCKY, MISSOURI, MONTANA,

NEVADA, NORTH CAROLINA, OKLAHOMA,

PENNSYLVANIA, VIRGINIA, AND WYOMING IN

SUPPORT OF RESPONDENT

TO THE HONORABLE JUSTICES OF THE’

SUPREME COURT:

NOW COME the States of Texas, Alabama,

Arizona, California, Indiana, Kentucky, Missouri,

ca iii

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Montana, Nevada, North Carolina, Oklahoma,

Pennsylvania, Virginia, and Wyoming, by the Attorney

General of Texas, and file this Brief Amicus Curiae in

Support of Respondent, Lee Roy Black, Commissioner,

Mississippi Department of Corrections.!

INTEREST OF AMICI

Amici are States with an interest in the limited

application of new constitutional rules in federal

habeas review effected by the retroactivity doctrine of

Teague v. Lane, 489 U.S. 288 (1989), and in the

interests of federalism, comity, and finality from which

the retroactivity doctrine derives.

This brief is submitted by amici through their

respective Attorneys General or Chief State Attorneys

in accordance with Rule 37.5 of the Rules of the

Supreme Court.

STATEMENT OF FACTS AND PROCEEDINGS

Stringer was indicted for and convicted of the

capital offense of murder of Nell McWilliams during

the course of an attempted robbery of her husband, Ray

McWilliams. Stringer had previous business dealings

with Ray McWilliams, who was in the business of buy-

ing and selling jewelry; McWilliams operated out of his

home and kept large amounts of money in a safe. The

trial evidence showed that Stringer initiated and

orchestrated the offense: he laid detailed plans for the

robbery, instructed the four other participants that the

McWilliamses had to be killed because they knew him

and could identify him, and furnished weapons for the

participants. The plan included cutting the throats of

Ray and Nell McWilliams, because Stringer was afraid

' For clarity, Petitioner will be referred to as "Stringer."

that the sound of gunshots would be heard by a police

officer whose house was adjacent to the McWilliams

home.

The crime did not go according to plan. Ray and

Nell McWilliams were murdered in their home on June

21, 1982, but not by having their throats cut. The plan

went awry when Ray McWilliams attempted to disarm

Stringer, and Stringer's gun discharged during the

ensuing scuffle. Accomplice John Mack Parker then

placed his gun to Ray McWilliams’ head and fired.

Stringer's son and accomplice, James Stringer, put the

end of a “riot” gun--the equivalent of a sawed-off

shotgun--to the back of Nell McWilliams’ head and shot

her as she crawled on the floor. Stringer v. State, 454

So.2d 468, 471-72 (Miss. 1984).

At the punishment phase of Stringer's trial, the

jury returned a sentence of death after finding three

aggravating circumstances: (1) “[t]he Defendant con-

templated that life would be taken and/or the capital

murder was intentionally committed and that the

Defendant was engaged in an attempt to commit

robbery; and was committed for pecuniary gain’;

(2) [t]he capital murder was committed for the purpose

of avoiding or preventing the detection and lawful

arrest of James R. Stringer, the Defendant"; and

(3) "[t]he capital murder was especially heinous,

atrocious or cruel."

Stringer directly appealed his conviction and

sentence to the Mississippi Supreme Court and,

concurrently, appealed the trial court's denial of a

petition for writ of error coram nobis. The Mississippi

Supreme Court affirmed on July 11, 1984, and on

August 15, 1984, modified its opinion on denial of

rehearing. Stringer v. State, 454 So.2d 468 (Miss.

1984). In affirming Stringer's death sentence, the

ata ea earn ee

4

appellate court concluded that the sentence was not

influenced by passion, prejudice, or any other arbitrary

factor. Id. at 478.

Stringer's conviction became final on February

19, 1985, when this Court denied his petition for writ of

certiorari. Stringer v. Mississippi, 469 U.S. 1230 (1985).

Following the denial of state collateral relief.

Stringer v. State,.485 So.2d 274 (Miss.), cert. denied,

479 U.S. 922 (1986), Stringer initiated a federal habeas

action in the United States District Court for the

Southern District of Mississippi. The district court

conducted an evidentiary hearing and on November 20,

1987, denied habeas corpus relief. Stringer v. Scroggy,

675 F.Supp. 356 (S.D. Miss. 1987). On appeal, the

United States Court of Appeals for the Fifth Circuit

affirmed the denial of habeas relief on December 22,

1988, Stringer v. Jackson, 862 F.2d 1108 (5th Cir.

1988), and denied rehearing on January 20, 1989.

Stringer petitioned for a writ of certiorari. On

April 16, 1990, the Court granted certiorari, vacated

the judgment, and remanded to the Fifth Circuit for

further consideration in light of Clemons v. Mississippi,

494 US. __, 110 S.Ct. 1441 (1990). The court of

appeals issued its opinion on remand, holding that

Clemons was a new rule that could not be retroactively

applied on federal habeas review. Stringer v. Black, 909

F.2d 111 (5th Cir. 1990). This proceeding followed.

SUMMARY OF ARGUMENT

If Maynard v. Cartwright, 486 U.S. 356 (1988),

or Clemons v. Mississippi actually stands for the

proposition underlying Stringer's argument, that a

death sentence violates the Eighth Amendment if an

aggravating circumstance found by the jury is

ee

invalidated for a reason other than constitutionally

inadequate narrowing or injection of constitutionally

impermissible sentencing concerns’ into the

individualized determination of sentence, then either

or both decisions represent “new rules" that cannot be

applied retroactively on collateral review. Zant v.

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

463 U.S. 973 (1983), established that a valid death

sentence results from a procedure that both genuinely

narrows the class of persons eligible for the death

penalty and provides for an individualized sentencing

determination based on the defendant's character and

the circumstances of the crime. Assuming arguendo

that Mississippi's “especially heinous, atrocious or

cruel" aggravating circumstance is impermissibly

vague, under Stephens and Barclay, the jury's finding

of this factor does not implicate the Constitution if the

class of persons eligible for the death sentence is other-

wise genuinely narrowed at the guilt-innocence phase

by the definition of capital murder or at the punish-

ment phase by a constitutionally adequate circum-

stance. If the Court's reversal of the sentence in

Cartwright is based on a rejection of this analysis

rather than deference to Cartwright's possible right

under state law to have his sentence modified to life,

then Cartwright established a "new rule." Alter-

natively, if Cartwright did not reject the “harmless

error’ analysis of Stephens and Barclay, then, to the

extent that the Court repudiated this analysis in

Clemons, that decision sets forth a "new rule."

Moreover, the standards of appellate review set

forth in Clemons were not dictated by Lockett v. Ohio ,

438 U.S. 536 (1978) and Eddings v. Oklahoma, 455

U.S. 104 (1982). Lockett and Eddings were concerned

with what mitigating evidence a jury must be

permitted to consider not with how it should be

considered. Mississippi's application of its automatic

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6

affirmance rule to disregard the finding of the

“especially heinous" circumstance, does not affect what

mitigating evidence is considered in making the

individualized assessment of sentence but how it is to

be given effect--a concern that is not even within the

logical compass of Lockett and Eddings.

ARGUMENT

With two limited exceptions, "new" rules of

federal constitutional law cannot be applied on

collateral review of a conviction that was final before

the rule was announced. Butler v. McKellar, 494 U.S.

F , 110 S. Ct. 1212, 1216 (1990); Penry uv.

Lynaugh, 492 U.S. 302, 313 (1989); Teague v. Lane, 489

U.S. at 310. A decision announces a new rule for

retroactivity purposes if it “breaks new ground,’

‘imposes a new obligation on the States. or Federal

Government, or was not ‘dictated by precedent existing

at the time the defendant's conviction became final."

Saffle v. Parks, 494 U.S.__, __,110S. Ct. 1257, 1260

(1990), quoting Teague v. Lane, 489 U.S. at 301

(emphasis in original).

Non-retroactivity of new constitutional rules on

collateral review reflects the nature, function, and

scope of the writ and accommodates interests of comity

and finality. Teague v. Lane, 489 U.S. at 305-08,

quoting Mackey v. United States, 401 U.S. 667, 682

(1971) (Harlan, J., concurring in judgment in part and

dissenting in part) ("The relevant frame of reference

...18 not the purpose of the new rule whose benefit the

[defendant] seeks, but instead the purposes for which

the writ is available"); see also Butler v. McKellar, 494

U.S. at __, 110 S. Ct. at 1216-17; Saffle v. Parks, 494

U.S. at __, 110 S. Ct. at 1260. Thus, the question

whether a decision announces a new rule is answered

by reference to the purposes for which the habeas writ

is made available, the pre-eminent purpose being to

ensure that state criminal proceedings are conducted in

accordance with then-existing constitutional require-

ments. Saffle v. Parks, 494 U.S. at __, 110 S. Ct. at

1260, citing Butler v. McKellar, 494 U.S. ___, 110 S. Ct.

at 1216-17. Accordingly, to provide the incentive for

trial and appellate judges to conduct their proceedings

in accordance with established constitutional prin-

ciples, habeas courts need only apply the constitutional

standards that prevailed at the time of the original

proceedings. Teague v. Lane, 489 U.S. at 306.

The principle that a new constitutional rule will

not be applied on collateral review of convictions that

became final before the rule was announced also

reflects the State's interest in finality. “Application of

constitutional rules not in existence at the time a

conviction became final seriously undermines the

principle of finality which is essential to the operation

of our criminal justice system." Teague v. Lane, 489

U.S. at 309.

For the purposes of the Teague retroactivity

analysis, a rule sought by a petitioner is dictated by

prior precedent if, at the time the petitioner's

conviction became final, a state court would have felt

compelled by existing precedent to conclude that the

rule sought by petitioner was required by the

Constitution. Saffle v. Parks, 494 U.S. at__, 110 S. Ct.

at 1260. The fact that the rule sought may be

characterized as being informed by or within the logical

compass of previously existing precedent, or even

controlled or governed by prior decisions, does not

mean that it was dictated or compelled by the pre-

existing law and, thus, does not resolve the “new rule’

inquiry. Sawyer v. Smith, 497 U.S. __, __, 110 S. Ct.

2822, 2828 (1990); Butler v. McKellar, 494 U.S. at __,

110 S. Ct. at 1217. The “new rule" principle ensures

that “reasonable, good faith interpretations of existing

precedents made by state courts" are validated, even

though the interpretations ultimately conflict with

later Supreme Court decisions. Butler v. McKellar, 494

U.S. at __, 110 S. Ct. at 1217. Thus, habeas review is

foreclosed not only when petitioner's claim clearly

breaks new ground or imposes new obligations on state

or federal courts, but also when the outcome of a claim

is susceptible to debate among reasonable jurists, when

the reasoning underlying existing precedent supports a

different conclusion, or when existing precedent

"indicates" that a different conclusion might be

reached. /d. at__, 110 S. Ct. at 1217-18.

Maynard v. Cartwright and Clemons ov.

Mississippi were not dictated by previously existing

precedent. Indeed, the reasoning employed in both

Stephens and Barclay reasonably supports conclusions

that differ from those reached in Cartwright and

Clemons, including the conclusion that, under the

circumstances presented in Clemons and in this case,

application of Mississippi's automatic affirmance rule

is constitutional.

THE COURT'S’ DECISION _ IN

MAYNARD V. CARTWRIGHT WAS

NOT DICTATED BY EXISTING

PRECEDENT.

At the time Cartwright was announced, it had

been established that, in order for a death sentence to

be valid, it must result from a sentencing procedure

that provides for both (1) a genuine narrowing of the

class of persons eligible for the death penalty in a

manner that reasonably justifies the imposition of the

death sentence, see Zant v. Stephens, 462 U.S. at 877;

Lowenfield v. Phelps, 484 U.S. 231, 244 (1988), and

(2) an individualized determination that death is the

appropriate sentence in the particular case. See

Barclay v. Florida, 463 U.S. at 958, quoting Zant v.

Stephens, 462 U.S. at 879 ("what is important .. . is the

individualized determination on the basis of the

character of the individual and the circumstances of

the crime"). Further, Stephens and Barclay established

that the invalidation of a statutory aggravating

circumstance upon which a death sentence rests does

not necessarily render the sentence unconstitutional.

Rather, the constitutionality of the resulting sentence

depends on two interrelated factors: "the function of

the jury's finding of an aggravating circumstance under

[the state's] capital sentencing statute, and [ ] the

reasons that the aggravating circumstance at issue ...

was found to be invalid.” Zant v. Stephens, 462 U.S. at

863; Barclay v. Florida, 463 U.S. at 951

Cartwright marks a significant departure from

prior precedent if it actually stands for the proposition

underlying Stringer's argument, that a death sentence

can violate the Eighth Amendment if an aggravating

factor found by the sentencer is invalidated for a

reason other than _ constitutionally inadequate

narrowing or _ injection into the _ individualized

sentencing determination of constitutionally

impermissible considerations. No previously existing

precedent supports, much less. dictates, this

interpretation of Cartwright. Amici ask the Court to

reaffirm its prior holdings and clarify that the Eighth

Amendment is not implicated by the invalidation of an

aggravating factor unless the reason for the

invalidation is itself constitutional in nature--a

complete absence of narrowing or the injection of

unconstitutional factors into the sentencing process.

10

A. The constitutionally required

narrowing function is accomp-

lished by the finding of one

aggravating circumstance.

The death sentence invalidated in Godfrey v.

Georgia, 446 U.S. 420 (1980), was based on the jury's

finding of a single aggravating factor--that the offense

was outrageously or wantonly vile, horrible or in-

human. The Court held that, without a narrowing con-

struction, the aggravating factor found by the jury did

not satisfy the requirement that states "define crimes

for which death may be imposed in a way that obviates

‘standardless [sentencing] discretion.” Jd. at 428. The

Court also noted that a person of ordinary sensibility

could characterize almost every murder as “outrage-

ously or wantonly vile, horrible or inhuman." 7d. at

428-29. Because the factor could be fairly found to char-

acterize most murders, it did not perform the function

required by the Eighth Amendment of narrowing the

class of people eligible for the death penalty. Conseq-

uently, Godfrey's sentence was held unconstitutional.

In Stephens, however, the Court held that the

Georgia Supreme Court's invalidation of one of three

statutory aggravating circumstances did not implicate

the Eighth Amendment. The state court's reason for

invalidating the factor was analogous to the rationale

for this Court's holding in Godfrey--the factor did not

provide a principled basis for distinguishing cases in

which the death penalty may be imposed from cases in

which it may not be imposed. Zant v. Stephens, 462

U.S. at 878 & n.16. Given the state court's holding, the

Court held that the constitutionality of Stephens’ death

sentence depended "on the function of the jury's finding

of an aggravating circumstance under Georgia's capital

sentencing statute, and on the reasons that the aggra-

vating circumstance at issue in this particular case was

found to be invalid." Zant v. Stephens, 462 U.S. at 863.

Under Georgia's capital sentencing scheme "the

finding of an aggravating circumstance does not play

any role in guiding the sentencing body in the exercise

of its discretion, apart from its function of narrowing

the class of persons convicted of murder who are

eligible for the death penalty." Jd. at 874. Although the

challenged factor might not have been sufficient by

itself to narrow the class of death-eligible defendants,

this Court nonetheless held that Stephens’ death

sentence could stand, because the narrowing function

was properly accomplished by the two remaining valid

aggravating circumstances. Apart from narrowing, the

challenged factor did not violate the Constitution

because it merely authorized the jury to consider

constitutionally permissible factors that were properly

before it. Jd. at 885. The Court cautioned, however,

that it did "not express any opinion concerning the

possible significance of a holding that a particular

aggravating circumstance is ‘invalid’ under a statutory

scheme in which the judge or jury is specifically

instructed to weigh statutory aggravating and

mitigating circumstances in exercising its discretion

whether to impose a death penalty." Jd. at 890.

The Court's possible limitation of the holding of

Stephens cannot be interpreted to compel the conclu-

sion reached in Cartwright, particularly when Stephens

is read in conjunction with Barclay v. Florida. In

Barclay, decided less than a month after Stephens, the

Court addressed the effect of the jury's finding of a non-

statutory aggravating circumstance on the validity of a

sentencing proceeding in which the jury was required

to weigh statutory aggravating circumstances against

mitigating circumstances but was not permitted to con-

12

sider non-statutory aggravating circumstances.? The

Court noted that federai review of aggravating circum-

stances employed by a state to narrow the class of

people eligible for the death penalty is limited to

whether the circumstances “are so unprincipled or

arbitrary as to somehow violate the United States

Constitution.” Barclay v. Florida, 463 U.S. at 947. The

Court concluded that the trial court's determination

that the defendant's criminal record constituted a non-

statutory aggravating circumstance presented an issue

of state law that did not implicate the adequacy of the

constitutionally required narrowing, because it is

constitutionally permissible for a state to make a

defendant's criminal record an _é aggravating

circumstance. Barclay v. Florida, 463 U.S. at 951 n.8.

The decisions preceding Cartwright do not

support, much less compel, the conclusion that a jury's

2 As with the impermissibly vague aggravating

circumstance in Stephens, whether the finding of a non-statutory

aggravating circumstance required vacating the sentence

depended upon the function of the aggravating circumstance

under Florida law and on the reason why the circumstance was

invalid. Barclay v. Florida, 463 U.S. at 951. The Court

summarized the relevant aspects of Florida state law as follows:

[T)he Florida statute, like the Georgia statute at

issue in Zant v. Stephens, ... requires the

sentencer to find at least one valid statutory

aggravating circumstance before the death penalty

may even be considered, and permits the trial

court to admit any evidence that may be relevant

to the proper sentence. Unlike the Georgia

statute, however, Florida law requires the

sentencer to balance statutory aggravating

circumstances against all mitigating circumstances

and does not permit non-statutory aggravating

circumstances to enter into this weighing process.

Barclay v. Florida, 463 U.S. at 954.

13

finding of a valid aggravating circumstance may be

rendered insufficient to satisfy the narrowing

requirement if the jury also found an_ invalid

aggravating circumstance. See Lowenfield v. Phelps,

484 U.S. at 246 ("[t]he fact that the sentencing jury is

also required to find the existence of an aggravating

circumstance in_ addition [to the narrowing

accomplished at the guilt-innocence phase] is not part

of the constitutionally required narrowing process, and

so the fact that the aggravating circumstances

duplicated one of the elements of the crime does not

make this sentence constitutionally infirm"). Moreover,

it was by no means evident that the constitutional

validity of the narrowing could be undermined by state

procedures, or the lack thereof, for saving a death

sentence when one of two or more aggravating

circumstances is invalidated. Under both Stephens and

Barclay, as long as one valid aggravating circumstance

exists, it should make no difference to the adequacy of

the narrowing whether an additional factor was

invalidated as a matter of state or federal law. Because,

as set forth below, the aggravating circumstance at

issue in Cartwright and in this case injected no

constitutionally impermissible concerns into the jury's

sentencing considerations, the invalidation of a death

sentence based on the jury's finding of that

circumstance constitutes an unprecedented extension

of Eighth Amendment protections that was not dictated

by existing precedent.

14

B. Barclay and Stephens support

the conclusion that, if the con-

stitutionally required narrow-

ing has been accomplished by a

valid aggravating circumstance,

the Eighth Amendment is not

violated by the jury's consider-

ation of non-statutory aggrava-

ting circumstances that encom-

pass aspects of the defendant's

character or background or the

circumstances of the offense.

Under the reasoning of Stephens and Barclay,

the Eighth Amendment is not violated by the jury's

consideration, in making the individualized sentencing

determination, of the nature of the offense via the “es-

pecially heinous, atrocious or cruel" circumstance.

"Once the jury finds that the defendant falls within the

legislatively defined category of people eligible for the

death penalty, ... the jury is free to consider a myriad

of factors to determine whether death is the approp-

riate punishment." Barclay v. Florida, 463 U.S. at 950,

966-67, citing California v. Ramos, 463 U.S. 992, 1008

(1983). "[T]he Constitution does not require the jury to

ignore other possible [non-statutory] aggravating

factors in the process of selecting, from among that

class [of persons eligible for the death penalty], those

defendants who will actually be sentenced to death.

What is important at the selection stage is an individ-

ualized determination on the basis of the character of

the individual and the circumstances of the crime.’

Zant v. Stephens, 462 U.S. at 878; Barclay v. Florida,

463 U.S. at 957 (there is no constitutional defect in

sentence based on both statutory and non-statutory

aggravating circumstances).

15

When a "heinousness"-type aggravating factor is

invalidated for a reason other than inadequate

narrowing of the class of death-eligible persons, the

circumstances of the crime remain as a constitutionally

permissible non-statutory aggravating factor.

Regardless whether sentencing discretion is channelled

through weighing of aggravation and mitigation,

consideration of a non-statutory aggravating factor can

undermine the constitutionality of the individual

sentencing determination only if it injects

constitutionally prohibited concerns into the jury's

deliberations. In Barclay, the Court was called upon to

address the issue that it expressly left open in

Stephens, the constitutional significance of a holding

that a particular aggravating circumstance is ‘invalid’

under a statutory scheme in which the sentencer is

instructed to weigh statutory aggravating and

mitigating circumstances in exercising its discretion

whether to impose a death penalty. See Zant uv.

Stephens, 462 U.S. at 890. The Court held that the trial

judge's consideration of Barclay's criminal record as a

non-statutory "aggravating circumstance did not so

infect{] the balancing process that it [was]

constitutionally impermissible for the Florida Supreme

Court to let the sentence stand," precisely because

3 Numerous ccurts have reasonably interpreted Barclay

and Zant to mean that it is constitutionally permissible for the

sentencer to consider information not directly relevant to statutory

aggravating and mitigating circumstances, so long as the evidence

is relevant to the defendant's character or to the circumstances of

the offense. E.g., People v. Rodriguez, 794 P.2d 965, 986 (Colo.

1990); State v. Wille, 559 So.2d 1321, 1336 (La. 1990); State v.

Reeves, 234 Neb. 711, 453 N.W.2d 359, 374 (1990); State v. Rose,

112 N.J. 454, 548 A.2d 1058, 1085 n.11 (1988); Robins v. State, 798

P.2d 558, 567 (Nev. 1990); State v. Gardner, 789 P.2d 273, 285

(Utah 1989); Lesko v. Owens, 881 F.2d 44, 59 (3rd Cir. 1989):

Harris v. Pulley, 885 F.2d 1354, 1381 (9th Cir. 1988) (as amended

on denial of rehearing and rehearing en banc); Coleman v. Saffle,

852 F.2d 1377, 1390 (10th Cir. 1989).

16

Barclay's criminal record was an aspect of his

background that was properly before the trial judge

and nothing in the United States Constitution

prohibited the trial court from considering Barclay's

criminal record. Barclay v. Florida, 463 U.S. at 956-57.

Significantly, Barclay relied on Godfrey to chal-

lenge two other aggravating circumstances as imper-

missibly vague: (1) that in committing the murder, he

"knowingly created a great risk to many persons," and

(2) that the murder was committed to "hinder the law-

ful exercise of any governmental function or the

enforcement of the laws." Barclay v. Florida, 463 U.S..

at 947, 968-69. While the plurality dismissed these

challenges with the conclusion that “[i]t was not irra-

tional or arbitrary to apply these aggravating circum-

stances to the facts of this case", id. at 947, the concur-

rence’s rejection was more instructive.

This evidence was properly before the

advisory jury because it was admissible at

the guilt phase of the proceeding. Thus,

whether or not these particular aggra-

vating circumstances have been narrowly

defined by the Florida Supreme Court,

this case--like Zant v. Stephens--involves

challenged findings of “statutory aggrava-

ting circumstance[s}] ... whose terms

plausibly described aspects of the

defendant's background that were

properly before the jury and whose

accuracy was unchallenged.

Barclay v. Florida, 463 U.S. at 969 (concurring

opinion), citing Zant v. Stephens, 462 U.S. at 887.

C. Regardless whether Godfrey

"controlled" the disposition of

Cartwright, it did not dictate

the conclusion that the aggrava-

ting factor was unconsti-

tutionally applied in

Cartwright's case or that his

death sentence violated the

Eighth Amendment.

In Maynard v. Cartwright, 486 U.S. at 363, the

Court approved the court of appeals’ holding that

Godfrey controlled resolution of a challenge to

Oklahoma's "especially heinous, atrocious or cruel"

aggravating factor. This statement is not dispositive of

the retroactivity question presented in this case and

cannot be interpreted to mean that Godfrey dictated

the conclusion that the challenged aggravating circum-

stance was impermissibly vague. The Court had on

several occasions been presented with the opportunity

to apply the reasoning of Godfrey in reviewing the

“especially heinous, atrocious or cruel" factor and had

declined to do so. For example, in Barclay, without

addressing whether the “especially heinous, atrocious

or cruel” circumstance was sufficiently specific and

unambiguous to accomplish the narrowing required by

the Eighth Amendment, the Court concluded that the

finding was not "so unprincipled or arbitrary as to

somehow violate the United States Constitution."

Barclay v. Florida, 463 U.S. at 947. The Court

approved the finding of the circumstance despite the

fact that the judge tailored his understanding of this

circumstance to the facts of the case and took into

account the racial motive for the murder committed by

Barclay, which he compared to his experiences in the

Army in World War II, when he saw Nazi

concentration camps and their victims. Barclay uv.

Florida, 463 U.S. at 949-50. Godfrey was distinguished

18

on the facts of the crime. Id. at 947 n.5; but see Eddings

v. Oklahoma, 455 U.S. at 109 n.4 (expressing doubt

that finding that murder of a police officer in

performance of duties is "heinous, atrocious, or cruel”

conforms to degree of certainty required by Godfrey).

Moreover, Godfrey did not dictate the conclusion

that Cartwright's death sentence was unconstitutional

under the Eighth Amendment. In Cartwright, the

Court was presented with an issue not raised by the

facts in Godfrey, specifically whether a death sentence

based on a jury's finding of two ‘aggravating

circumstances must be reversed when, although one

aggravating circumstance is subsequently determined

to be unconstitutionally vague, another is unchallenged

and sufficient to place the defendant within the class of

people eligible for the death penalty. See Barclay v.

Florida, 463 U.S. at 947 n.5, 956 (Godfrey

distinguished on the basis that in Godfrey the jury

found only one, impermissibly vague, aggravating

circumstance). The Cartwright Court's apparent

resolution of that issue represents a divergence from

the reasoning of Stephens and Barclay that the Eighth

Amendment is not implicated by an_ invalid

aggravating factor if the constitutionally required

narrowing of the class of people eligible for the death

penalty is otherwise accomplished by a_ valid

aggravating factor and if the individualized sentencing

determination is based on constitutionally permissible

information that is properly before the jury. Barclay uv.

Florida, 463 U.S. at 956-57; Zant v. Stephens, 462 U.S.

at 887; see also California v. Ramos, 463 U.S. at 1008

(1983). By extending Eighth Amendment protections

beyond the heretofore mandated narrowing and

individualized determination of sentence, the Court

clearly announced a new rule. Thus, the statement in

Cartwright that Godfrey controlled the resolution of the

challenge to Oklahoma's “especially heinous, atrocious

19

or cruel" aggravating circumstance, does not signify

that Godfrey dictated the ultimate disposition of

Cartwright's challenge.

IT.

NO SUPREME COURT PRECEDENT

COMPELLED THE DECISION IN

CLEMONS V. MISSISSIPPI.

In Clemons, the Court first set forth the

permissible scope and standards of appellate review

that a state could employ after an aggravating

circumstance found and considered by the sentencer in

making the individualized sentencing determination

has been invalidated. Following Clemons, an appellate

court may either (1) reweigh the remaining evidence or

(2) conduct a harmless error analysis by determining

beyond a reasonable doubt whether the sentence would

have been the same if there had been no "especially

heinous” instruction or if that circumstance had been

properly limited in scope. Clemons v. Mississippi, 494

U.S. at___, 110 S. Ct. at 1449-50.

The Clemons Court rejected Mississippi's

application of its automatic affirmance rule, under

which a death sentence would be sustained if, following

the invalidation of an aggravating circumstance, there

nonetheless remained one or more valid aggravating

circumstances. Clemons v. Mississippi, 494 U.S. __,

110 S. Ct. at 1450, see also Parker v. Dugger, ___ US.

__, 111 S. Ct. 731, 739 (1991). The standards of

appellate review set forth in Clemons and the rejection

of Mississippi's automatic affirmance rule under the

facts of Clemons cannot reasonably be characterized as

20

having been foteshadowed, much less dictated, by

existing precedent.‘

The Court further diverged from the reasoning of

Barclay and Stephens in rejecting Mississippi's applica-

tion of its automatic affirmance rule under the facts

presented by Clemons in which the only considerations

injected into the jury's sentencing determination by the

invalid aggravating circumstance were the facts and

nature of the offense. As set forth supra, Barclay and

Stephens reasonabiy support the conclusion that the

constitutionality of the individualized sentencing deter-

mination is not undermined by the jury's consideration

via an invalid aggravating factor of evidence relating to

the defendant's character or background or the circum-

stances of the offense, if the constitutionally required

narrowing is accomplished by a valid aggravating

circumstance or by the definition of the capital offense.

More recently, in Payne v. Tennessee, US.

__, 111 S. Ct. 2597 (1991), the Court reaffirmed the

appropriateness of sentencer consideration of precisely

the type of evidence that in Clemons was found to re-

quire resentencing. At issue in Payne was the approp-

riateness of jury consideration of "victim impact evi-

dence" and argument relating to that evidence. The

Court concluded "the assessment of harm caused by the

defendant as a result of the crime charged has under-

standably been an important concern of the criminal

law, both in determining the elements of the offense

and in determining the appropriate punishment.” Jd. at

__, 111 S. Ct. at 2605. "[I]Jt was never held or even

suggested in any of our cases preceding Booth [v.

Maryland, 482 U.S. 496 (1987)] that the defendant, en-

titled as he was to individual consideration, was to re-

4 There is nothing in the Court's references to appellate

review in Stephens, Barclay, or Cartwright that foreshadowed the

rule of Clemons.

21

ceive that consideration wholly apart from the crime

which he had committed." Jd. at __, 111 S. Ct. at 2605.

The conclusion reached in Clemons, 494 U.S. at __,

110 S. Ct. at 1451, that a finding of harmless error was

virtually foreclosed by the state's emphasis in closing

argument on the “especially heinous" circumstance is,

thus, inconsistent with Barclay and Payne.

No precedent existing at the time of the Clemons

decision compelled the conclusion that the

individualized sentencing determination is rendered

constitutionally infirm merely because the

circumstances of the offense are characterized as

“especially heinous, atrocious or cruel." To the contrary,

the Court had on two prior occasions rejected the

argument that an_ individualized sentencing

determination was impermissibly skewed merely by

the classification of otherwise valid sentencing

concerns as an aggravating factor. Barclay v. Florida,

463 U.S. at 956; see also Zant v. Stephens, 462 U.S. at

889 (mere fact that some of the aggravating

circumstances were improperly labeled "statutory" had

an inconsequential impact on the jury's decision

regarding the death penalty).

Further, prior precedent did not dictate the con-

clusion in Clemons that the concerns of Lockett v. Ohio

and Eddings v. Oklahoma were implicated by

Mississippi's application of an automatic affirmance

rule because the rule deprived defendants of the

individualized treatment that would result from actual

reweighing of the mix of mitigating factors and aggra-

vating circumstances. The holding of Lockett and

Eddings "that the State cannot bar relevant mitigating

evidence from being presented and considered during

the penalty phase of a capital trial" relates to what evi-

dence a jury must be permitted to consider not to how

it must consider the evidence. Saffle v. Parks, 494 U.S.

22

at _, 110 S. Ct. at 1261. Under Mississippi's capital

sentencing proceeding, a jury weighs mitigating

evidence against statutory aggravating factors found

beyond a reasonable doubt. Despite the Court's reliance

on Lockett and Eddings, the automatic affirmance rule

does not affect what mitigating evidence is considered.

Rather, by disregarding an invalid aggravating

circumstance, the rule at most alters how the evidence

is to be given effect. The rule of Lockett and Eddings,

which is not concerned with how evidence is to be given

effect, therefore cannot be construed as dictating the

rule of Clemons.

CONCLUSION

For the foregoing reasons, amici respectfully

request that the decision of the court below be affirmed.

Respectfully submitted,

DAN MORALES

Attorney General of Texas

WILL PRYOR

First Assistant Attorney General

MARY F. KELLER

Deputy Attorney General

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

DANA E. PARKER

Assistant Attorney General

23

MARGARET PORTMAN GRIFFEY*

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080

Fax No. (512) 463-2084

ATTORNEYS FOR AMICI

*Attorney of Record

CERTIFICATE OF SERVICE

I, Margaret Portman Griffey, Assistant Attorney

General of Texas, do hereby certify that three copies of

this Brief were served by placing same in the United

States Mail, postage prepaid, on this the day of

October, 1991, addressed to:

Kenneth J. Rose

923 Carolina Avenue

Durham, North Carolina 27705

Marvin L. White, Jr.

Assistant Attorney General

Office of the Attorney General

Post Office Box 220

Jackson, Mississippi 39205

MARGARET PORTMAN GRIFFEY

Assistant Attorney General