ZANT, WARDEN v. STEPHENS
No. 81-89.
Argued February 24, 1982
Decided May 3, 1982
Daryl A. Robinson, Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the brief were Michael J. Bowers, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Marion 0. Gordon and John C. Walden, Senior Assistant Attorneys General.
John Charles Boger argued the cause for respondent. With him on the brief were James C. Bonner, Jr., Jack Greenberg, James M. Nabrit III, Joel Berger, Deborah Fins, and Anthony G. Amsterdam.
A brief for the State of Alabama et al. as amici curiae urging reversal was filed by Charles A. Graddick, Attorney General of Alabama, George Deukmejian, Attorney General of California, Jim Smith, Attorney General of Florida, William J. Guste, Jr., Attorney General of Louisiana, William A. Attain, Attorney General of Mississippi, John D. Ashcroft, Attorney General of Missouri, and John M. Morris III, Assistant Attorney General, Michael T. Greely, Attorney General of Montana, Paul L. Douglas, Attorney General of Nebraska, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, Rufus L. Edmisten, Attorney General of North Carolina, Daniel R. McLeod, Attorney General of South Carolina, and David L. Wilkinson, Attorney General of Utah.
Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió filed a brief for the Washington Legal Foundation as amicus curiae.
Per Curiam.
The respondent was convicted of murder in a Georgia Superior Court. His sentencing jury found the following statutory aggravating circumstances:
“(1) that the offense of murder was committed by a person with a prior record of conviction of a capital felony, Code Ann. §27-2534.1(b)(1); (2) that the murder was committed by a person who has a substantial history of serious assaultive criminal convictions, Code Ann. §27-2534.1(b)(1), supra; and, (3) that the offense of murder was committed by a person who had escaped from the lawful custody of a peace officer or a place of lawful confinement, Code Ann. §27-2534.1(b)(9).” Stephens v. Hopper, 241 Ga. 596, 597-598, 247 S. E. 2d 92, 94, cert. denied, 439 U. S. 991 (1978).
The jury imposed the death penalty. On direct appeal, the Georgia Supreme Court affirmed. Stephens v. State, 237 Ga. 259, 227 S. E. 2d 261, cert. denied, 429 U. S. 986 (1976). On the authority of Arnold v. State, 236 Ga. 534, 224 S. E. 2d 386 (1976), it set aside the second statutory aggravating circumstance found by the jury. It upheld the death sentence, however, on the ground that in Arnold “that was the sole aggravating circumstance found by the jury,” whereas in the case under review “the evidence supports the jury’s findings of the other statutory aggravating circumstances, and consequently the sentence is not impaired.” 237 Ga., at 261-262, 227 S. E. 2d, at 263.
After exhausting his state postconviction remedies, Stephens v. Hopper, supra, the respondent applied for a writ of habeas corpus in Federal District Court. Relief was denied by that court, but the United States Court of Appeals for the Fifth Circuit “reverse[d] the district court’s denial of habeas corpus relief insofar as it le[ft] standing the [respondent’s] death sentence, and . . . remanded for further proceedings.” 631 F. 2d 397, 407 (1980), modified, 648 F. 2d 446 (1981). We granted the petition for certiorari. 454 U. S. 814.
In Gregg v. Georgia, 428 U. S. 153 (1976), we upheld the Georgia death penalty statute because the standards and procedures set forth therein promised to alleviate to a significant degree the concern of Furman v. Georgia, 408 U. S. 238 (1972), that the death penalty not be imposed capriciously or in a freakish manner. We recognized that the constitutionality of Georgia death sentences ultimately would depend on the Georgia Supreme Court’s construing the statute and reviewing capital sentences consistently with this concern. See 428 U. S., at 198, 201-206 (opinion of Stewart, Powell, and Stevens, JJ.); id., at 211-212, 222-224 (White, J., concurring in judgment). Our review of the statute did not lead us to examine all of its nuances. It was only after the state law relating to capital sentencing was clarified in concrete cases that we confronted and addressed more specific constitutional challenges in Coker v. Georgia, 433 U. S. 584 (1977), Presnell v. Georgia, 439 U. S. 14 (1978), Green v. Georgia, 442 U. S. 95 (1979), and Godfrey v. Georgia, 446 U. S. 420 (1980).
Today, we are asked to decide whether a reviewing court constitutionally may sustain a death sentence as long as at least one of a plurality of statutory aggravating circumstances found by the jury is valid and supported by the evidence. The Georgia Supreme Court consistently has asserted that authority. Its construction of state law is clear: “Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon.” Gates v. State, 244 Ga. 587, 599, 261 S. E. 2d 349, 358 (1979), cert. denied, 445 U. S. 938 (1980).
Despite the clarity of the state rule we are asked to review, there is considerable uncertainty about the state-law premises of that rule. The Georgia Supreme Court has never explained the rationale for its position. It may be that implicit in the rule is a determination that multiple findings of statutory aggravating circumstances are superfluous, or a determination that the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions. In this Court, the Georgia Attorney General offered as his understanding the following construction of state law: The jury must first find whether one or more statutory aggravating circumstances have been established beyond a reasonable doubt. The existence of one or more aggravating circumstances is a threshold finding that authorizes the jury to consider imposing the death penalty; it serves as a bridge that takes the jury from the general class of all murders to the narrower class of offenses the state legislature has determined warrant the death penalty. After making the finding that the death penalty is a possible punishment, the jury then makes a separate finding whether the death penalty should be imposed. It bases this finding “not upon the statutory aggravating circumstances but upon all the evidence before the jury in aggravation and mitigation of punishment which ha[s] been introduced at both phases of the trial.” Brief for Petitioner 13.
In view of the foregoing uncertainty, it would be premature to decide whether such determinations, or any of the others we might conceive as a basis for the Georgia Supreme Court’s position, might undermine the confidence we expressed in Gregg v. Georgia, 428 U. S. 153 (1976), that the Georgia capital-sentencing system, as we understood it then, would avoid the arbitrary and capricious imposition of the death penalty and would otherwise pass constitutional muster. Suffice it to say that the state-law premises of the Georgia Supreme Court’s conclusion of state law are relevant to the constitutional issue at hand.
The Georgia Supreme Court under certain circumstances will decide questions of state law upon certification from this Court. See Ga. Code §24-4536 (Supp. 1980). We invoke that statute to certify the following question: What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury?
The Clerk of this Court is directed to transmit this certificate, signed by The Chief Justice and under the official seal of the Court, as well as the briefs and record filed with the Court, to the Supreme Court of Georgia, and simultaneously to transmit copies of the certificate to the attorneys for the respective parties.
It is so ordered.
The trial judge instructed the sentencing jury as follows:
“Gentlemen of the Jury, the defendant in this case has been found guilty at your hands of the offense of Murder, and it is your duty to make certain determinations with respect to the penalty to be imposed as punishment for that offense. Now in arriving at your determinations in this regard you are authorized to consider all of the evidence received in court throughout the trial before you. You are further authorized to consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense. Under the law of this State every person guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case. In all cases of Murder for which the death penalty may be authorized the jury shall consider any mitigating circumstances or aggravating circumstances authorized by law. You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death. If you fix punishment at death by electrocution you would recite in the exact words which I have given you the one or more circumstances you found to be proven beyond a reasonable doubt. You would so state in your verdict, and after reciting this you would state, We fix punishment at death. On the other hand, if you recommend mercy for the defendant this will result in imprisonment for life of the defendant. In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find, and you would simply state in your verdict, We fix punishment at life in prison. Now, whatever your verdict may be with respect to the responsibility you have regarding sentencing please write these out, Mr. Foreman, immediately below the previous verdict you have rendered. Be sure that it is dated and that it bears your signature as foreman. Once again when you have arrived at your verdict on the sentencing phase of the case let us know. We will then receive the verdict from you and have it published here in open court. Please retire now and consider the sentence in this case.” App. 18-19.
See Stevens v. State, 247 Ga. 698, 709, 278 S. E. 2d 398, 407 (1981); Green v. State, 246 Ga. 598, 606, 272 S. E. 2d 475, 485 (1980), cert. denied, 450 U. S. 936 (1981); Hamilton v. State, 246 Ga. 264, n. 1, 271 S. E. 2d 173, 174, n. 1 (1980), cert. denied, 449 U. S. 1103 (1981); Brooks v. State, 246 Ga. 262, 263, 271 S. E. 2d 172 (1980), cert. denied, 451 U. S. 921 (1981); Collins v. State, 246 Ga. 261, 262, 271 S. E. 2d 352, 354 (1980), cert. denied, 449 U. S. 1103 (1981); Dampier v. State, 245 Ga. 882, 883, n. 1, 268 S. E. 2d 349, 350, n. 1, cert. denied, 449 U. S. 938 (1980); Burger v. State, 245 Ga. 458, 461-462, 265 S. E. 2d 796, 799-800, cert. denied, 446 U. S. 988 (1980); Gates v. State, 244 Ga. 587, 599, 261 S. E. 2d 349, 358 (1979), cert. denied, 445 U. S. 938 (1980); Stephens v. State, 237 Ga. 259, 261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U. S. 986 (1976).
Last Term, Members of this Court expressed different assumptions about the meaning — and the constitutionality — of the Georgia Supreme Court’s position. In Drake v. Zant, 449 U. S. 999 (1980), the Court declined to grant certiorari and vacate the judgments in two Georgia cases in which the death sentences — premised in part on the (b)(7) aggravating circumstance — were imposed prior to our decision in Godfrey v. Georgia, 446 U. S. 420 (1980). Justice Stevens, concurring in the disposition, expressed the opinion that the Georgia Supreme Court’s position was so clear that there was no need to remand the cases for reconsideration in light of Godfrey. 449 U. S., at 1000. Dissenting from the denial of certiorari, Justice Stewart stated that if one aggravating circumstance found by the jury “could not constitutionally justify the death sentence, Georgia law would prohibit a further finding that the error was harmless simply because of the existence of the other aggravating circumstance.” Id., at 1001. He believed that the Georgia Supreme Court’s position on the issue was inconsistent with the Georgia capital punishment scheme because “only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death.” Ibid. Justice White, also dissenting, would have remanded for reconsideration in light of Godfrey, a disposition that “would allow the Georgia Supreme Court in the first instance to determine whether the death penalty should be sustained without regard to the validity of the Godfrey circumstance.” 449 U. S., at 1002. He did “not understand the Georgia cases ... to hold either that the Georgia Supreme Court is without power to set aside a death penalty if it sustains only one of the aggravating circumstances found by the jury or that, although the court has that power, it invariably will not disturb the death penalty in such situations.” Ibid.
“When it shall appear to the Supreme Court of the United States . . . that there are involved in any proceeding before it questions or propositions of the laws of this State which are determinative of said cause and there are no clear controlling precedents in the appellate court decisions of this State, such Federal appellate court may certify such questions or propositions of the laws of Georgia to this court for instructions concerning such questions or propositions.”
stay, petition, or motion granted affirmed (includes modified) reversed reversed and remanded vacated and remanded affirmed and reversed (or vacated) in part affirmed and reversed (or vacated) in part and remanded vacated petition denied or appeal dismissed certification to or from a lower court no disposition