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No.
90-5551
HAROLD SCHAD, Jr.,
PETITIONER v. ARIZONA
[June 21, 1991]
Justice
White, with whom Justice Marshall, Justice Blackmun,
and Justice Stevens join, dissenting.
Because I disagree with the result
reached on each of the two separate issues before the Court, and because
what I deem to be the proper result on either issue alone warrants
reversal of petitioner's conviction, I respectfully dissent.
I
As In re Winship, 397 U.S.
358 (1970), makes clear, due process mandates "proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which [the
defendant] is charged." Id., at 364. In finding that the general
jury verdict returned against petitioner meets the requirements of due
process, the plurality ignores the import of Winship's holding.
In addition, the plurality mischaracter izes the nature of the
constitutional problem in this case.
It is true that we generally give
great deference to the States in defining the elements of crimes. I fail
to see, however, how that truism advances the plurality's case. There is
no failure to defer in recognizing the obvious: that pre-meditated
murder and felony murder are alternative courses of conduct by which the
crime of first-degree murder may be established. The statute provides:
"A murder which is perpetrated by
means of poison or lying in wait, torture or by any other kind of wilful,
deliberate or premeditated killing, or which is committed in avoiding or
preventing lawful arrest or effecting an escape from legal custody, or
in the perpetration of, or attempt to perpetrate, arson, rape in the
first degree, robbery, burglary, kidnapping, or mayhem, or sexual
molestation of a child under the age of thirteen years, is murder of the
first degree. All other kinds of murder are of the second degree." Ariz.
Rev. Stat. Ann. 13-452 (Supp. 1973).
The statute thus sets forth three
general categories of conduct which constitute first-degree murder: a "wilful,
deliberate or premeditated killing"; a killing committed to avoid arrest
or effect escape; and a killing which occurs during the attempt or
commission of various specified felonies. Here, the prosecution set out
to convict petitioner of firstdegree murder by either of two different
paths, premeditated murder and felony murder/robbery. Yet while these
two paths both lead to a conviction for first-degree murder, they do so
by divergent routes possessing no elements in common except the fact of
a murder. In his closing argument to the jury, the prosecutor himself
emphasized the difference between premeditated murder and felony murder:
"There are two types of first degree
murder, two ways for first degree murder to be committed. [One] is
premeditated murder. There are three elements to that. One, that a
killing take place, that the defendant caused someone's death. Secondly,
that he do so with malice. And malice simply means that he intended to
kill or that he was very reckless in disregarding the life of the person
he killed. . . .
"And along with the killing and the
malice, attached to that killing is a third element, that of
premeditation, which simply means that the defendant contemplated that
he would cause death, he reflected upon that.
"The other type of first degree
murder, members of the jury, is what we call felony murder. It only has
two components [sic] parts. One, that a death be caused, and, two, that
that death be caused in the course of a felony, in this case a robbery.
And so if you find that the defendant committed a robbery and killed in
the process of that robbery, that also is first degree murder." App.
6-7.
Unlike premeditated murder, felony
murder does not require that the defendant commit the killing or even
intend to kill, so long as the defendant is involved in the underlying
felony. On the other hand, felony murder — but not premeditated murder —
requires proof that the defendant had the requisite intent to commit and
did commit the underlying felony. State v. McLoughlin, 139
Ariz. 481, 485, 679 P. 2d 504, 508 (1984). Premeditated murder, however,
demands an intent to kill as well as premeditation, neither of which is
required to prove felony murder. Thus, contrary to the plurality's
assertion, see ante, at 13, the difference between the two paths
is not merely one of a substitution of one mens rea for another.
Rather, each contains separate elements of conduct and state of mind
which cannot be mixed and matched at will.
[n.1]
It is particularly fanciful to equate an intent to do no more than rob
with a premeditated intent to murder.
Consequently, a verdict that simply
pronounces a defendant "guilty of first-degree murder" provides no clues
as to whether the jury agrees that the three elements of premed itated
murder or the two elements of felony murder have been proven beyond a
reasonable doubt. Instead, it is entirely possible that half of the jury
believed the defendant was guilty of premeditated murder and not guilty
of felony murder/robbery, while half believed exactly the reverse. To
put the matter another way, the plurality affirms this con viction
without knowing that even a single element of either of the ways for
proving first-degree murder, except the fact of a killing, has been
found by a majority of the jury, let alone found unanimously by the jury
as required by Arizona law. A defendant charged with first-degree murder
is at least entitled to a verdict — something petitioner did not get in
this case as long as the possibility exists that no more than six jurors
voted for any one element of first-degree murder, except the fact of a
killing. [n.2]
The means by which the plurality
attempts to justify the result it reaches do not withstand scrutiny. In
focusing on our vagueness cases, see ante, at 6-7, the plurality
misses the point. The issue is not whether the statute here is so vague
that an individual cannot reasonably know what conduct is criminalized.
Indeed, the statute's specificity renders our vagueness cases
inapplicable. The problem is that the Arizona statute, under a single
heading, criminalizes several alternative patterns of conduct. While a
State is free to construct a statute in this way, it violates due
process for a State to invoke more than one statutory alternative, each
with different specified elements, without requiring that the jury
indicate on which of the alternatives it has based the defendant's guilt.
The plurality concedes that "nothing
in our history suggests that the Due Process Clause would permit a State
to convict anyone under a charge of `Crime' so generic that any
combination of jury findings of embezzlement, reckless driving, murder,
burglary, tax evasion, or littering, for example, would suffice for
conviction." Ante, at 7. But this is very close to the effect of
the jury verdict in this case. Allowing the jury to return a generic
verdict following a prosecution on two separate theories with specified
elements has the same effect as a jury verdict of "guilty of crime"
based on alternative theories of embezzlement or reckless driving. Thus
the statement that "[i]n Arizona, first degree murder is only one crime
regardless whether it occurs as a premeditated murder or a felony murder,"
State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624, 627
(1982), neither recognizes nor resolves the issue in this case.
The plurality likewise misses the
mark in attempting to compare this case to those in which the issue
concerned proof of facts regarding the particular means by which a crime
was committed. See ante, at 5-6. In the case of burglary, for
example, the manner of entering is not an element of the crime; thus,
Winship would not require proof beyond a reasonable doubt of such
factual details as whether a defendant pried open a window with a
screwdriver or a crowbar. It would, however, require the jury to find
beyond a rea sonable doubt that the defendant in fact broke and entered,
because those are the "fact[s] necessary to constitute the crime." 397
U. S., at 364. [n.3]
Nor do our cases concerning the
shifting of burdens and the creation of presumptions help the
plurality's cause. See ante, at 12. Although this Court
consistently has given deference to the State's definition of a crime,
the Court also has made clear that having set forth the elements of a
crime, a State is not free to remove the burden of proving one of those
elements from the prosecution. For example, in Sand strom
v. Montana, 442 U.S. 510 (1979), the Court recognized that "under
Montana law, whether the crime was committed purposely or knowingly is a
fact necessary to consti tute the crime of deliberate homicide," and
stressed that the State therefore could not shift the burden of proving
lack of intent to the defendant. Id., at 520-521. Conversely, in
Patterson v. New York, 432 U.S. 197, 205-206 (1977), the
Court found that it did not violate due process to require a defendant
to establish the affirmative defense of extreme emotional disturbance,
because "[t]he death, the intent to kill, and causation are the facts
that the State is required to prove beyond a reasonable doubt if a
person is to be convicted of murder. No further facts are either
presumed or inferred in order to constitute the crime." Here, the
question is not whether the State "must be permitted a degree of
flexibility" in defining the elements of the offense. See ante,
at 12. Surely it is entitled to that deference. But having determined
that premeditated murder and felony murder are separate paths to
establishing first-degree murder, each containing a separate set of
elements from the other, the State must be held to its choice.
[n.4]
Cf. Evitts v. Lucey, 469 U.S. 387, 401 (1985). To allow
the State to avoid the consequences of its legislative choices through
judicial interpretation would permit the State to escape federal
constitutional scrutiny even when its actions violate rudimentary due
process.
The suggestion that the state of
mind required for felony murder/robbery and that for premeditated murder
may reasonably be considered equivalent, see ante, at 18, is not
only unbelievable, but it also ignores the distinct consequences that
may flow from a conviction for each offense at sentencing. Assuming that
the requisite statutory aggravating circumstance exists, the death
penalty may be imposed for premeditated murder, because a conviction
necessarily carries with it a finding that the defendant intended to
kill. See Ariz. Rev. Stat. Ann. 13-703 (1989). This is not the case with
felony murder, for a conviction only requires that the death occur
during the felony; the defendant need not be proven to be the killer.
Thus, this Court has required that in order for the death penalty to be
imposed for felony murder, there must be a finding that the defendant in
fact killed, attempted to kill, or intended that a killing take place or
that lethal force be used, Enmund v. Florida, 458 U.S.
782, 797 (1982), or that the defendant was a major participant in the
felony and exhibited reckless indifference to human life, Tison
v. Arizona, 481 U.S. 137, 158 (1987).
In the instant case, the general
verdict rendered by the jury contained no finding of intent or of actual
killing by petitioner. The sentencing judge declared, however:
"[T]he court does consider the fact
that a felony murder instruction was given in mitigation, however there
is not evidence to indicate that this murder was merely incidental to a
robbery. The nature of the killing itself belies that. . . .
"The court finds beyond a reasonable
doubt that the defendant attempted to kill Larry Grove, intended to kill
Larry Grove and that defendant did kill Larry Grove.
"The victim was strangled to death
by a ligature drawn very tightly about the neck and tied in a double
knot. No other reasonable conclusion can be drawn from the proof in this
case, notwithstanding the felony murder instruction." Tr. 8-9 (Aug. 29,
1985).
Regardless of what the jury actually
had found in the guilt phase of the trial, the sentencing judge believed
the murder was premeditated. Contrary to the plurality's suggestion, see
ante, at 18, n. 9, the problem is not that a general verdict
fails to provide the sentencing judge with sufficient information
concerning whether to impose the death sentence. The issue is much more
serious than that. If in fact the jury found that premeditation was
lacking, but that petitioner had committed felony murder/robbery, then
the sentencing judge's finding was in direct contravention of the jury
verdict. It is clear, therefore, that the general jury verdict creates
an intolerable risk that a sentencing judge may subsequently impose a
death sentence based on findings that contradict those made by the jury
during the guilt phase, but not revealed by their general verdict. Cf.
State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817
(1989).
II
I also cannot agree that the
requirements of Beck v. Alabama, 447 U.S. 625 (1980), were
satisfied by the instructions and verdict forms in this case. Beck
held that "when the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense — but leaves some
doubt with respect to an element that would justify conviction of a
capital offense — the failure to give the jury the `third option' of
convicting on a lesser included offense would seem inevitably to enhance
the risk of an unwarranted conviction." Id., at 637. The majority
finds Beck satisfied because the jury here had the opportunity to
convict petitioner of second-degree murder. See ante, at 20-21.
But that alternative provided no "third option" to a choice between
convicting petitioner of felony murder/robbery and acquitting him
completely, because, as the State concedes, see Tr. of Oral Arg. 51-52,
second-degree murder is a lesser included offense only of premeditated
murder. Thus, the Arizona Supreme Court has declared that " `[t]he jury
may not be instructed on a lesser degree of murder than first
degree where, under the evidence, it was committed in the course of a
robbery.' " State v. Clayton, 109 Ariz. 587, 595, 514 P.
2d 720, 728 (1973), quoting State v. Kruchten, 101 Ariz.
186, 196, 417 P. 2d 510, 520 (1966), cert. denied, 385 U.S. 1043 (1967)
(emphasis added). Consequently, if the jury believed that the course of
events led down the path of felony murder/robbery, rather than
premeditated murder, it could not have convicted petitioner of second-degree
murder as a legitimate "third option" to capital murder or acquittal.
The State asserts that felony murder
has no lesser included offenses.
[n.5]
In order for a defendant to be convicted of felony murder, however,
there must be evidence to support a conviction on the underlying felony,
and the jury must be instructed as to the elements of the underlying
felony. Although the jury need not find that the underlying felony was
completed, the felony murder statute requires there to be at least an
attempt to commit the crime. As a result, the jury could not have
convicted petitioner of felony murder/robbery without first finding him
guilty of robbery or attempted robbery.
[n.6]
Indeed, petitioner's first conviction was reversed because the
trial judge had failed to instruct the jury on the elements of robbery.
142 Ariz. 619, 691 P. 2d 710 (1984). As the Arizona Supreme Court
declared, "Fundamental error is present when a trial judge fails to
instruct on matters vital to a proper consideration of the evidence.
Knowledge of the elements of the underlying felonies was vital for the
jurors to properly consider a felony murder theory." Id., at
620-621, 691 P. 2d, at 711-712 (citation omitted).
It is true that the rule in Beck
only applies if there is in fact a lesser included offense to that with
which the defendant is charged, for "[w]here no lesser included offense
exists, a lesser included offense instruction detracts from, rather than
enhances, the rationality of the process." Spaziano v.
Florida, 468 U.S. 447, 455 (1984). But while deference is due state
legislatures and courts in defining crimes, this deference has
constitutional limits. In the case of a compound crime such as felony
murder, in which one crime must be proven in order to prove the other,
the underlying crime must, as a matter of law, be a lesser included
offense of the greater.
Thus, in the instant case, robbery
was a lesser included offense of the felony murder/robbery for which
petitioner was tried. The Arizona Supreme Court acknowledged that "the
evidence supported an instruction and conviction for robbery," had
robbery been a lesser included offense of felony murder/robbery. 163
Ariz. 411, 417, 788 P. 2d 1162, 1168 (1989). Consequently, the evidence
here met "the independent prerequisite for a lesser included offense
instruction that the evidence at trial must be such that a jury could
rationally find the defendant guilty of the lesser offense, yet acquit
him of the greater." Schmuck v. United States, 489 U.S.
705, 716, n. 8 (1989); see Keeble v. United States, 412
U.S. 205, 208 (1973). Due process required that the jury be given the
opportunity to convict petitioner of robbery, a necessarily lesser
included offense of felony murder/robbery. See Stevenson v.
United States, 162 U.S. 313, 319-320 (1896).
Nor is it sufficient that a "third
option" was given here for one of the prosecution's theories but not the
other. When the State chooses to proceed on various theories, each of
which has lesser included offenses, the relevant lesser included
instructions and verdict forms on each theory must be given in
order to satisfy Beck. Anything less renders Beck, and the
due process it guarantees, meaningless.
With all due respect, I dissent.
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Notes
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