# Amicus Curiae Brief — Stringer v. Black

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 222

## Text

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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

2

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

|

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0141%3A09. Public record. Not legal advice.