Clemons v. Mississippi/Concurrence Blackmun

Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, concurring in part and dissenting in part.

I agree that Mississippi's "especially heinous, atrocious or cruel" aggravating circumstance provided insufficient guidance to the sentencing jury, and that the Supreme Court of Mississippi did not articulate a satisfactory basis for affirming the death sentence imposed upon Chandler Clemons. I therefore concur in the Court's holding that the judgment below must be vacated. I dissent, however, from the majority's strong and gratuitous suggestion that the Mississippi Supreme Court nevertheless may "salvage" Clemons' death sentence by performing its own weighing of aggravating and mitigating circumstances.

* In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), this Court considered Georgia's "outrageously or wantonly vile, horrible or inhuman" aggravating circumstance. The plurality stated: "There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.  A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.' "  Id., at 428-429, 100 S.Ct., at 1764-1765. In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), we noted that "the language of the Oklahoma aggravating circumstance at issue-'especially heinous, atrocious, or cruel'-gave no more guidance than the 'outrageously or wantonly vile, horrible or inhuman' language that the jury returned in its verdict in Godfrey." Id., 486 U.S. at 363-364, 108 S.Ct., at 1859. The evil of a "catchall" aggravating circumstance such as this one is that it provides "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Godfrey v. Georgia, 446 U.S., at 433, 100 S.Ct., at 1767 (plurality opinion). It therefore is apparent that Mississippi's "especially heinous, atrocious or cruel" aggravating circumstance is invalid unless the State has established some method by which its application can be limited meaningfully.

In the present case, the Mississippi Supreme Court sought to distinguish Maynard by pointing to a "limiting construction" adopted in Coleman v. State, 378 So.2d 640 (Miss.1979): " ' "What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies-the conscienceless or pitiless crime which is unnecessarily torturous to the victim." ' "  535 So.2d 1354, 1363 (1988) (quoting Coleman, 378 So.2d, at 648, which in turn quoted Spinkellink v. Wainwright, 578 F.2d 582, 611 (CA5 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)). When one reads the Coleman opinion, however, it is apparent that it did not establish a "limiting construction" at all. The Mississippi court, at the page cited, further quoted:

" 'Again, we feel that the meaning of such terms is a matter     of common knowledge, so that an ordinary man would not have      to guess at what was intended.' "  (Emphasis deleted.)

The Coleman court argued, in other words, that a sentencing jury could be expected to interpret the words "especially heinous, atrocious or cruel" as signifying "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." Coleman did not seek to clarify this aggravating circumstance. Rather, the court argued that no clarification was necessary -a proposition emphatically rejected in Maynard. The Coleman definition was never intended-and has proved to be utterly unable-to provide guidance to the sentencing jury.

In this case, as in the vast majority of Mississippi cases in which this aggravating circumstance has been submitted, the jury was given no guidance beyond the statutory language. The Mississippi Supreme Court frequently has held that the phrase "especially heinous, atrocious or cruel" is readily comprehensible to the average juror and that no further instruction is necessary. On one occasion the court suggested that the better course is to give a clarifying instruction, but it shortly made it clear that a trial judge's failure to do so is not reversible error. In another case the court went so far as to discourage the use of a clarifying instruction. The Mississippi Supreme Court even has upheld a trial judge's refusal to give an instruction, requested by the defense, that tracked the language of Coleman. In short, it is no accident and no anomaly that the jury in petitioner's case-like the Oklahoma jury in Maynard -was left to its own devices in applying the "especially heinous, atrocious or cruel" aggravating circumstance.

Nor has appellate review by the Mississippi Supreme Court served to limit the application of this aggravating circumstance to those murders that are "unnecessarily torturous to the victim." To begin with, the court has disavowed the Coleman definition in sustaining capital sentences. See Irving v. State, 441 So.2d 846, 850 (1983) (aggravating circumstance held to be supported by the record even though victim died instantly: "While the great majority of death penalty cases affirmed by this Court involve some type of physical and/or mental torture to the victim, we have never specifically held that a finding of [this aggravating factor] must be supported by evidence of prolonged suffering"), cert. denied, 470 U.S. 1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985). In the vast majority of Mississippi cases in which a capital sentence has been imposed, the jury has concluded that the murder was "especially heinous, atrocious or cruel." The Mississippi Supreme Court never has found that this aggravating circumstance was unsupported by the record. Often the aggravating circumstance has been upheld despite the fact that the victim died instantly or within a very brief period of time. In some of these cases, the Mississippi Supreme Court has stated only that the aggravating circumstance was supported by the record, or that the question was for the jury; on other occasions the court has justified its decision by noting that the murder was as heinous, atrocious, or cruel as in previous cases where death was also instantaneous. In short, the "limiting construction" announced in Coleman has not prevented Mississippi juries from acting upon a belief that every murder is especially heinous, atrocious, or cruel. I therefore agree that petitioner Clemons' sentencing jury relied in part on an invalid aggravating factor, and I concur in the Court's decision to vacate the judgment of the Supreme Court of Mississippi. II

As stated above, however, I dissent from the majority's gratuitous suggestion that on remand the Mississippi Supreme Court itself may reweigh aggravating and mitigating circumstances and thereby salvage petitioner's death sentence. That portion of the Court's discussion is a pure and simple advisory opinion, something I thought this Court avoided and was disinclined to issue. See Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983); Bayard v. Lombard, 9 How. 530, 548-549 (1850). The majority recognizes, as it must, that the Mississippi Supreme Court has given no clear indication that it intends to reweigh or that under state law it has the power to do so. The Court's determination that reweighing is constitutional has no bearing upon our conclusion, which is to vacate the Mississippi judgment and remand the case for further proceedings in the state courts. Rather than awaiting, and then reviewing, the decisions of other tribunals, the Court today assumes that its role is to offer helpful suggestions to state courts seeking to expedite the capital sentencing process. Of course the Court's discussion of reweighing may have an effect on the form that the state proceedings will take. But the impropriety of an advisory opinion is not eliminated by the possibility that the state court will act upon the advice.

In my view, the majority's discussion of the reweighing issue is sadly flawed. If a jury's verdict rests in part upon a constitutionally impermissible aggravating factor, and the State's appellate court upholds the death sentence based upon its own reweighing of legitimate aggravating and mitigating circumstances, the appellate court, in any real sense, has not approved or affirmed the verdict of the jury. Rather, the reviewing court in that situation has assumed for itself the role of sentencer. The logical implication of the majority's approach is that no trial-level sentencing procedure need be conducted at all. Instead, the record of a capital trial (including a sentencing hearing conducted before a court reporter) might as well be shipped to the appellate court, which then would determine the appropriate sentence in the first instance.

The Court's approval of appellate sentencing finds little basis in our precedents. The majority relies principally on three of this Court's capital sentencing decisions. Two of these cases seem to me to be inapposite; the third, while lending frail support to the majority's conclusion, is distinguishable in its really crucial aspects.

Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), is the only case that possibly provides theoretical support for the majority's position. In the end, however, I believe that the Court's opinion today goes significantly beyond the result reached in Bullock. In that case a bare majority of the Court held that the finding required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)-that the defendant killed, attempted to kill, or intended that a killing occur-could be made in the first instance by a state supreme court, and that the state court's finding would be entitled to a presumption of correctness on federal habeas review. The Court noted, however, that there are significant limitations on the appellate court's ability to make the findings required by Enmund:

"There might be instances, however, in which the presumption     [of correctness] would not apply to appellate factfinding      regarding the Enmund criteria because appellate factfinding      procedures were not 'adequate,' see 28 U.S.C. § 2254(d)(2).      For example, the question whether the defendant killed,      attempted to kill, or intended to kill might in a given case      turn on credibility determinations that could not be      accurately made by an appellate court on the basis of a paper      record. . . .  The possibility that such cases falling within      the § 2254(d)(2) exception may exist, however, does not      excuse the habeas court of its obligation to examine the      entire state process to determine whether the Enmund findings have been made, for it is by no means apparent that appellate      factfinding will always be inadequate.  For example, in some      cases it may be possible to determine the Enmund issue      adversely to the defendant even if credibility issues and      other ambiguities in the record are resolved in his or her      favor." 474 U.S., at 388, n. 5, 106 S.Ct., at 698 n. 5.

Bullock, it seems to me, stands only for the proposition that an appellate court may make Enmund findings based on a "summary judgment" standard, viewing the evidence in the light most favorable to the defendant. This Court in that case did not hold that an appellate court may make Enmund findings that turn on disputed issues of fact. And it certainly did not hold that an appellate court may assess the weight of mitigating evidence without observing the defendant and his witnesses.

The Court's reliance on Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), is misplaced. The trial error alleged in Goode -reliance on a "future dangerousness" aggravating circumstance-was an error of state law only. This Court has said that the Constitution does not forbid consideration of future dangerousness as a factor in capital sentencing, see Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); insofar as the Eighth Amendment is concerned, Goode had received an error-free sentencing procedure at the trial level. The Florida Supreme Court's independent reweighing of aggravating and mitigating factors, this Court held, was sufficient to ensure that state law was not applied in so haphazard a fashion as to produce "an arbitrary or freakish sentence forbidden by the Eighth Amendment." 464 U.S., at 87, 104 S.Ct., at 383. Goode supports only the unremarkable proposition that errors of state law are not ordinarily the concern of federal courts, see id., at 86, 104 S.Ct., at 383 (citing Barclay v. Florida, 463 U.S. 939, 957-958, 103 S.Ct. 3418, 3428-3429, 77 L.Ed.2d 1134 (1983) (plurality opinion)), and that state appellate courts are given broad latitude in their review of state-law claims. The decision does not support the majority's conclusion that a state supreme court itself may impose a capital sentence in a case where the trial-level sentencing procedure failed to satisfy federal constitutional requirements.

The Court also states that in Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), "we upheld the Florida death penalty scheme permitting a trial judge to override a jury's recommendation of life even though there were no written jury findings." Ante, at 750. But our conclusion in Spaziano-that evidence relevant to the capital sentencing decision can be adequately assessed by a trial judge who has witnessed the testimony-is irrelevant to the question whether such an assessment can be made on the basis of a cold record. The majority's immediately following and conclusory assertion that "[a]n appellate court also is able adequately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings" simply emerges from nowhere.

Indeed, the Court's reliance on Spaziano -reflecting an implicit assumption that trial and appellate judges somehow are interchangeable-is symptomatic of the confusion that seems to me to characterize the majority opinion. To support its conclusion that appellate reweighing is permissible, the majority notes: "It is a routine task of appellate courts to decide whether the evidence supports a jury verdict and in capital cases in 'weighing' States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. . . .  [A] similar process of weighing aggravating and mitigating evidence is involved in an appellate court's proportionality review." Ante, at 748-749. The majority thus equates the reviewing function of an appellate court with the trial judge's initial assessment of the evidence. In fact, however, both this Court and the Supreme Court of Mississippi repeatedly have emphasized that appellate courts are institutionally incapable of fulfilling the distinct functions performed by trial judges and juries.

The Supreme Court of Mississippi itself has said that "even if we wanted to be fact finders, our capacity for such is limited in that we have only a cold, printed record to review. The trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that we need and desire." Gavin v. State, 473 So.2d 952, 955 (1985). See also, e.g., Cook v. State, 467 So.2d 203, 204 (Miss.1985) ("[W]e have no choice but to accord great respect and deference to verdicts by properly instructed juries, for the chances of error and injustice in any determination we might make would be infinitely greater than is the case where those findings are made by an impartial jury drawn from a fair cross-section of the community"); Hall v. State, 427 So.2d 957, 960, n. 3 (Miss.1983) ("We emphasize that we are not here making findings of fact on conflicting evidence.  Appellate courts do not do this"). In the capital context that court has stressed: "Under our law the jury is the sole player in the judicial process who may vote to send an accused to die.  They alone make that determination and all review is then conducted with a presumption of its correctness." Wiley v. State, 449 So.2d 756, 762 (1984). See also Leatherwood v. State, 539 So.2d 1378, 1389 (Miss.1989) ("It matters not, however, whether the record is now complete, for the [evidence] must first be presented to the circuit court jury. The circuit court jury sits as factfinder and sentencer, and it is that body, not this Court, which should make all of the credibility determinations that go along with the exercise of that duty"); White v. State, 532 So.2d 1207, 1220 (Miss.1988) ("As in other cases, our scope of review is limited.  We must view the evidence and all reasonable inferences which may be drawn therefrom in the light most consistent with the verdict.  We have no authority to disturb the verdict short of a conclusion on our part that upon the evidence, taken in the light most favorable to the verdict, no rational trier of fact could have found the fact at issue beyond a reasonable doubt");  Williams v. State, 445 So.2d 798, 811 (Miss.1984) (review of jury's finding of aggravating circumstances involves "nothing more than the familiar test we apply when a defendant argues here that the trial judge should have entered a judgment of acquittal notwithstanding the verdict of the jury"), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985).

As noted earlier, the Mississippi Supreme Court never has held that the evidence failed to support a jury's finding that a particular murder was "especially heinous, atrocious or cruel." The court is required to undertake a proportionality review whenever it affirms a sentence of death, but on only one occasion has a capital sentence been invalidated solely on the ground that it was disproportionate to the offense. These facts do not prove that the Supreme Court of Mississippi has failed to fulfill its proper function. The facts do show, however, that its function has been that of an appellate court, reviewing the decisions of sentencing juries with a heavy measure of deference. The Mississippi Supreme Court has emphasized repeatedly that it lacks both the authority and the institutional competence to determine the appropriate sentence as an initial matter. Yet when deference to the jury's role as the sentencing body would require that a new sentencing hearing be convened, this Court's majority of today strongly encourages the state court to adopt, instead, a radically different conception of its institutional role.

Like the Mississippi Supreme Court, this Court, too, has emphasized that trial and appellate tribunals respectively perform distinct functions. In explaining the requirement that courts of appeals must defer to district court findings of fact unless these findings are clearly erroneous, it has noted that "only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). The Federal Rules, of course, are not of constitutional stature; the States are not required to mimic the federal system in their allocation of responsibilities between trial and appellate courts. But, given the heightened concern for reliability when a sentence of death is imposed, I find inexplicable the majority's willingness in a capital case to countenance the resolution of disputed factual issues by means of a procedure that this Court has deemed insufficiently reliable even for the adjudication of a civil lawsuit.

In a variety of contexts, moreover, this Court has attached constitutional significance to an individual's interest in presenting his case directly to the finder of fact. In Rock v. Arkansas, 483 U.S. 44, 51, n. 8, 107 S.Ct. 2704, 2709, n. 8, 97 L.Ed.2d 37 (1987), we noted that "there [is] no longer any doubt that the right to be heard, which is so essential to due process in an adversary system of adjudication, [can] be vindicated only by affording a defendant an opportunity to testify before the factfinder." We have recognized that the Confrontation Clause serves to afford a criminal defendant the privilege "of compelling [the witness] to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339-340, 39 L.Ed. 409 (1895). Outside the criminal context, the Court has held that termination of benefits under the Aid to Families with Dependent Children program must be preceded by a hearing, since "[p]articularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision." Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). See also Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (when parole is revoked, parolee is constitutionally entitled to an "opportunity to be heard in person"). It stands the Eighth Amendment on its head to suggest that these concerns somehow become less pressing when a sentence of death is imposed.

In part, therefore, the impropriety of appellate sentencing rests on the appellate court's diminished ability to act as a factfinder. But I think there is more to it than that. An appellate court is ill suited to undertake the task of capital sentencing, not simply because of its general deficiencies as a factfinder, or because the costs of erroneous factfinding are so high, but also because the capital sentencing decision by its very nature is peculiarly likely to turn on considerations that cannot adequately be conveyed through the medium of a written record. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), this Court emphasized that

"an appellate court, unlike a capital sentencing jury, is     wholly ill-suited to evaluate the appropriateness of death in      the first instance.  Whatever intangibles a jury might      consider in its sentencing determination, few can be gleaned      from an appellate record.  This inability to confront and      examine the individuality of the defendant would be      particularly devastating to any argument for consideration of      what this Court has termed '[those]

compassionate or mitigating factors stemming from the diverse     frailties of humankind.'  Woodson [v. North Carolina, 428     U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) ]. When we held that a defendant has a constitutional right to     the consideration of such factors [citing Eddings v.      Oklahoma, 455 U.S. 104 [102 S.Ct. 869, 71 L.Ed.2d 1] (1982),     and Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d     973] (1978) ], we clearly envisioned that that consideration      would occur among sentencers who were present to hear the      evidence and arguments and see the witnesses."  Id., 472      U.S., at 330-331, 105 S.Ct., at 2640-2641.

The petitioner in this case, for example, argued that his remorse for the crime constituted a mitigating factor. It would verge on the surrealistic to suggest that Chandler Clemons' right to present that contention would be adequately protected by an appellate court's consideration of the written transcript of his testimony. More than any other decision known to our law, the decision whether to impose the death penalty involves an assessment of the defendant himself, not simply a determination as to the facts surrounding a particular event. And an adequate assessment of the defendant-a procedure which recognizes the "need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual," Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (plurality opinion)-surely requires a sentencer who confronts him in the flesh. I therefore conclude that a capital defendant's right to present mitigating evidence cannot be fully realized if that evidence can be submitted only through the medium of a paper record. I also believe that, if a sentence of death is to be imposed, it should be pronounced by a decisionmaker who will look upon the face of the defendant as he renders judgment. The bloodless alternative approved by the majority conveniently may streamline the process of capital sentencing, but at a cost that seems to me to be intolerable.

By now it is settled law that "the penalty of death is qualitatively different" from any other sentence, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion), and that "this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed," Lockett v. Ohio, 438 U.S., at 604, 98 S.Ct., at 2964 (plurality opinion). Our Eighth Amendment jurisprudence reflects the conviction that state procedures that satisfy constitutional requirements in the general run of criminal prosecutions may nevertheless be inadequate when a defendant's life is at stake. Against this backdrop, I find extraordinary the majority's eagerness to approve a capital sentencing procedure that the Mississippi Supreme Court has shown no clear inclination to adopt, that appears to have no analogue in other areas of Mississippi law, and that flies in the face of this Court's prior warnings concerning the institutional limitations of appellate courts. The one consolation, in my view, lies in the possibility that the Supreme Court of Mississippi will decline the invitation that this Court proffers today. The majority, as I see it, has abdicated its responsibility to enforce federal constitutional norms. That failure, however, cannot absolve the Mississippi Supreme Court of its duty to apply state procedural rules in a fair and consistent manner. The Supreme Court of Mississippi repeatedly has stated that it cannot and will not fulfill the role that the majority suggests for it today. Despite this Court's decision, it is still the responsibility of the Mississippi Supreme Court to ensure that "[t]here will be no short cuts to the execution chamber." Pinkton v. State, 481 So.2d 306, 310 (Miss.1985).