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OCTOBER TERM, 1991 October 21, 1991

502 U. S.

No. 90–8407. Strozier v. Newsome, Warden. C. A. 11th Cir. Certiorari denied. Justice White would grant certiorari. Reported below: 926 F. 2d 1100. No. 91–355 (A–243). McNamee et al. v. State Bar Court for the State Bar of California. Sup. Ct. Cal. Application for stay, addressed to The Chief Justice and referred to the Court, denied. Certiorari denied. No. 91–5473. Pensinger v. California. Sup. Ct. Cal. Certiorari denied. Reported below: 52 Cal. 3d 1210, 805 P. 2d 899. Justice O’Connor, with whom Justice Kennedy joins, dissenting. Petitioner claims that the California Supreme Court reviewed his death sentence in a manner inconsistent with this Court’s holding in Clemons v. Mississippi, 494 U. S. 738 (1990). I agree; I would grant the petition, vacate petitioner’s death sentence, and remand to the California Supreme Court. At the guilt phase of a capital trial in California, the trier of fact determines whether the “special circumstances” alleged by the prosecution are true. Cal. Penal Code Ann. § 190.1(a) (West 1988). At the penalty phase, the trier of fact weighs any aggravating circumstances, including the special circumstances found to be true, against any mitigating circumstances. § 190.3. At petitioner’s trial, the jury found the existence of two special circumstances—that the murder was committed in the course of a kidnaping, and that the murder was accompanied by the infliction of torture. The California Supreme Court reversed the jury’s finding as to the special circumstance of torture, because the jury was not instructed that the circumstance required proof of intent to torture. 52 Cal. 3d 1210, 1255, 805 P. 2d 899, 921 (1991). The court expressly found that the instructional error was not harmless, in light of the parties’ failure to focus at trial on the issue of petitioner’s intent to torture and because the evidence of such intent was not overwhelming. Ibid. The court nevertheless upheld the death sentence. In a single paragraph added to the opinion two months after it was published, the court reasoned: “[T]he evidence of the shocking nature of the attack on the infant victim was properly before the jury. The erroneous special circumstance finding was only a ‘statutory label’ which