|
No.
90-5551
HAROLD SCHAD, Jr.,
PETITIONER v. ARIZONA
[June 21, 1991]
Justice Souter
announced the judgment of the Court and
delivered the opinion of the Court with respect to Part III, and an
opinion with respect to Parts I and II in which The Chief Justice,
Justice O'Connor, and Justice Kennedy join.
This case presents two questions:
whether a first-degree murder conviction under jury instructions that
did not require agreement on whether the defendant was guilty of
premeditated murder or felony murder is unconstitutional; and whether
the principle recognized in Beck v. Alabama, 447 U.S. 625
(1980), entitles a defendant to instructions on all offenses that are
lesser than and included within a capital offense as charged. We answer
no to each.
I
On August 9, 1978, a highway worker
discovered the badly decomposed body of 74-year-old Lorimer Grove in the
underbrush off U. S. Highway 89, about nine miles south of Prescott,
Arizona. There was a rope around his neck, and a coroner determined that
he had been strangled to death. The victim had left his home in Bisbee,
Arizona, eight days earlier, driving his new Cadillac and towing a
camper.
On September 3, 1978,
petitioner, driving Grove's Cadillac, was stopped for speeding by the
New York State Police. He told the officers that he was transporting the
car for an elderly friend named Larry Grove. Later that month,
petitioner was arrested in Salt Lake City, Utah, for a parole vio lation
and possession of a stolen vehicle. A search of the Cadillac, which
petitioner was still driving, revealed personal belongings of Grove's,
and petitioner's wallet contained two of Grove's credit cards, which
petitioner had begun using on August 2, 1978. Other items belonging to
Grove were discovered in a rental car which had been found abandoned off
Highway 89 on August 3, 1978; petitioner had rented the car the previous
December and never returned it. While in custody in Salt Lake City,
petitioner told a visitor that he would " `deny being in any area of
Arizona or the State of Arizona, particularly Tempe, Arizona and
Prescott, Arizona.' " 163 Ariz. 411, 414, 788 P. 2d 1162, 1164 (1989).
A Yavapai County, Arizona, grand
jury indicted petitioner on one count of first-degree murder, and
petitioner was extradited to stand trial. The Arizona statute applicable
to petitioner's case defined first-degree murder as "murder which is . .
. wilful, deliberate or premeditated . . . or which is committed . . .
in the perpetration of, or attempt to perpetrate . . . robbery." Ariz.
Rev. Stat. Ann. 13-452 (Supp. 1973).
[n.1]
Petitioner was convicted and sentenced to death, but his conviction was
set aside on collateral review. 142 Ariz. 619, 691 P. 2d 710 (1984).
At petitioner's retrial, the
prosecutor advanced theories of both premeditated murder and felony
murder, against which petitioner claimed that the circumstantial
evidence proved at most that he was a thief, not a murderer. The court
instructed the jury that "[f]irst degree murder is murder which is the
result of premeditation. . . . Murder which is committed in the attempt
to commit robbery is also first degree murder." App. 26. The court also
instructed that "[a]ll 12 of you must agree on a verdict. All 12 of you
must agree whether the verdict is guilty or not guilty." Id., at
27.
The defense requested a jury
instruction on theft as a lesser included offense. The court refused,
but did instruct the jurors on the offense of second-degree murder, and
gave them three forms for reporting a verdict: guilty of firstdegree
murder; guilty of second-degree murder; and not guilty. The jury
convicted petitioner of first-degree murder, and, after a further
hearing, the judge sentenced petitioner to death.
The Arizona Supreme Court affirmed.
163 Ariz. 411, 788 P. 2d 1162 (1989). The court rejected petitioner's
contention that the trial court erred in not requiring the jury to agree
on a single theory of first-degree murder, explaining:
" `In Arizona, first degree murder
is only one crime regardless whether it occurs as a premeditated murder
or a felony murder. Although a defendant is entitled to a unanimous jury
verdict on whether the criminal act charged has been committed, the
defendant is not entitled to a unanimous verdict on the precise manner
in which the act was committed." Id., at 417; 788 P. 2d, at 1168
(quoting State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d
624, 627 (1982)) (citations omitted).
The court also rejected petitioner's
argument that Beck v. Alabama, 447 U.S. 625 (1980),
required an instruction on the lesser included offense of robbery. 163
Ariz., at 416-417, 788 P. 2d, at 1167-1168.
We granted certiorari. 498 U. S. —
(1990).
II
Petitioner's first contention is
that his conviction under instructions that did not require the jury to
agree on one of the alternative theories of premeditated and felony
murder is unconstitutional.
[n.2]
He urges us to decide this case by holding that
the Sixth, Eighth, and Fourteenth Amendments require a unanimous jury in
state capital cases, as distinct from those where lesser penalties are
imposed. See Johnson v. Louisiana, 406 U.S. 356 (1972);
Apodaca v. Oregon, 406 U.S. 404 (1972). We decline to do so,
however, because the suggested reasoning would beg the question raised.
Even assuming a requirement of jury unanimity arguendo, that
assumption would fail to address the issue of what the jury must be
unanimous about. Petitioner's jury was unanimous in deciding that the
State had proved what, under state law, it had to prove: that petitioner
murdered either with premeditation or in the course of committing a
robbery. The question still remains whether it was constitutionally
acceptable to permit the jurors to reach one verdict based on any
combination of the alternative findings. If it was, then the jury was
unanimous in reaching the verdict, and petitioner's proposed unanimity
rule would not help him. If it was not, and the jurors may not combine
findings of premeditated and felony murder, then petitioner's conviction
will fall even without his proposed rule, because the instructions
allowed for the forbidden combination.
In other words, petitioner's real
challenge is to Arizona's characterization of first-degree murder as a
single crime as to which a verdict need not be limited to any one
statutory alternative, as against which he argues that premeditated
murder and felony murder are separate crimes as to which the jury must
return separate verdicts. The issue in this case, then, is one of the
permissible limits in defining criminal conduct, as reflected in the
instructions to jurors applying the definitions, not one of jury
unanimity.
A
A way of framing the issue is
suggested by analogy. Our cases reflect a long-established rule of the
criminal law that an indictment need not specify which overt act, among
several named, was the means by which a crime was committed. In
Andersen v. United States, 170 U.S. 481 (1898), for example,
we sustained a murder conviction against the challenge that the
indictment on which the verdict was returned was duplicitous in charging
that death occurred through both shooting and drowning. In holding that
"the Government was not required to make the charge in the alternative,"
id., at 504, we explained that it was immaterial whether death
was caused by one means or the other. Cf. Borum v. United
States, 284 U.S. 596 (1932) (upholding the murder conviction of
three codefendants under a count that failed to specify which of the
three did the actual killing); St. Clair v. United States,
154 U.S. 134, 145 (1894). This fundamental propo sition is embodied in
Federal Rule of Criminal Procedure 7(c)(1), which provides that "[i]t
may be alleged in a single count that the means by which the defendant
committed the offense are unknown or that the defendant committed it by
one or more specified means."
We have never suggested that in
returning general verdicts in such cases the jurors should be required
to agree upon a single means of commission, any more than the
indictments were required to specify one alone. In these cases, as in
litigation generally, "different jurors may be persuaded by different
pieces of evidence, even when they agree upon the bottom line. Plainly
there is no general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict." McKoy v.
North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J.,
concurring) (footnotes omitted).
The alternatives in the cases cited
went, of course, to possibilities for proving the requisite actus
reus, while the pres ent case involves a general verdict predicated
on the possibility of combining findings of what can best be described
as alternative mental states, the one being premeditation, the other the
intent required for murder combined with the commission of an
independently culpable felony. See State v. Serna, 69 Ariz.
181, 188, 211 P. 2d 455, 459 (1949) (in Arizona, the attempt to commit a
robbery is "the legal equivalent of . . . deliberation, premeditation,
and design"). [n.3]
We see no reason, however, why the rule that the jury need not agree as
to mere means of satisfying the actus reus element of an offense
should not apply equally to alternative means of satisfying the element
of mens rea.
That is not to say, however, that
the Due Process Clause places no limits on a State's capacity to define
different courses of conduct, or states of mind, as merely alternative
means of committing a single offense, thereby permitting a defendant's
conviction without jury agreement as to which course or state actually
occurred. The axiomatic requirement of due process that a statute may
not forbid conduct in terms so vague that people of common intelligence
would be relegated to differing guesses about its meaning, see
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (citing
Connally v. General Construction Co., 269 U.S. 385, 391
(1926)), carries the practical consequence that a defendant charged
under a valid statute will be in a position to understand with some
specificity the legal basis of the charge against him. Thus it is an
assumption of our system of criminal justice " `so rooted in the
traditions and conscience of our people as to be ranked as fundamental,'
" Speiser v. Randall, 357 U.S. 513, 523 (1958) (quoting
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)), that no
person may be punished criminally save upon proof of some specific
illegal conduct. Just as the requisite specificity of the charge may not
be compromised by the joining of separate offenses, see United States
v. UCO Oil Co., 546 F. 2d 833 (CA9 1976), cert. denied, 430 U.S.
966 (1977), 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.
[n.4]
To say, however, that there are
limits on a State's authority to decide what facts are indispensable to
proof of a given offense, is simply to raise the problem of describing
the point at which differences between means become so important that
they may not reasonably be viewed as alternatives to a common end, but
must be treated as differentiating what the Constitution requires to be
treated as separate offenses. See generally Note, 91 Harv. L. Rev. 499,
501-502 (1977). Although we have never before attempted to define what
constitutes an immaterial difference as to mere means and what
constitutes a material difference requiring separate theories of crime
to be treated as separate offenses subject to separate jury findings,
there is a body of law in the federal circuits, deriving primarily from
the decision of the Fifth Circuit in United States v. Gipson,
553 F. 2d 453 (1977) (Wisdom, J.), that addresses this problem.
The defendant in Gipson was
charged with violating 18 U.S.C. 2313 which prohibited knowingly "receiv[ing],
conceal[ing], stor[ing], barter[ing], sell[ing] or dispos[ing] of" any
stolen vehicle or aircraft moving in interstate commerce, and was
convicted after the trial judge charged the jury that it need not agree
on which of the enumerated acts the defendant had committed. The Fifth
Circuit reversed, reasoning that the defendant's right to "jury
consensus as to [his] course of action"
[n.5]
was violated by the joinder in a single count of "two distinct
conceptual groupings," receiving, concealing, and storing forming the
first grouping (referred to by the court as "housing"), and bartering,
selling, and disposing ("marketing") constituting the second. Id.,
at 456-459. In that court's view, the acts within a conceptual grouping
are sufficiently similar to obviate the need for jurors to agree about
which of them was committed, whereas the acts in distinct conceptual
groupings are so unrelated that the jury must decide separately as to
each grouping. A number of lower courts have adopted the standard of "distinct
conceptual groupings" as the appropriate test. E. g., United
States v. Peterson, 768 F. 2d 64 (CA2) (Friendly, J.), cert.
denied, 474 U.S. 923 (1985); United States v. Duncan, 850
F. 2d 1104, 1113 (CA6 1988), cert. denied sub nom. Downing
v. United States, 498 U. S. — (1990); State v. Baldwin,
101 Wis. 2d 441, 449-450, 304 N. W. 2d 742, 747-749 (1981).
We are not persuaded that the
Gipson approach really answers the question, however. Although the
classification of alternatives into "distinct conceptual groupings" is a
way to express a judgment about the limits of permissible alter natives,
the notion is too indeterminate to provide concrete guidance to courts
faced with verdict specificity questions. See, e. g., Rice
v. State, 311 Md. 116, 133, 532 A. 2d 1357, 1365 (1987) (criticizing
Gipson criteria as "not entirely clear" and as "provid[ing]
little guidance"); Trubitt, Patchwork Verdicts, Different-Jurors
Verdicts, and American Jury Theory: Whether Verdicts Are Invalidated by
Juror Disagreement on Issues, 36 Okla. L. Rev. 473, 548-549 (1983) (same).
This is so because conceptual groupings may be identified at various
levels of generality, and we have no a priori standard to
determine what level of generality is appropriate. Indeed, as one judge
has noted, even on the facts of Gipson itself, "[o]ther
conceptual groupings of the six acts are possible. [One might] put all
six acts into one conceptual group, namely trafficking in stolen
vehicles." Manson v. State, 101 Wis. 2d 413, 438, 304 N.
W. 2d 729, 741 (1981) (Abrahamson, J., concurring); accord Trubitt,
supra, at 548-549 ("[I]t is difficult to see how a court could
determine that `housing' and `marketing' are ultimate acts in some
metaphysical or constitutional sense, and thus prohibit the legislature
from including them in the single offense of trafficking"). In short,
the notion of "distinct conceptual groupings" is simply too conclusory
to serve as a real test.
The dissent would avoid the
indeterminacy of the Gipson approach by adopting an inflexible
rule of maximum verdict specificity. In the dissent's view, whenever a
statute lists alternative means of committing a crime, "the jury [must]
indicate on which of the alternatives it has based the defendant's guilt,"
post, at 5, even where there is no indication that the statute
seeks to create separate crimes. This approach rests on the erroneous
assumption that any statutory alternatives are ipso facto
independent elements defining independent crimes under state law, and
therefore subject to the axiomatic principle that the prosecution must
prove independently every element of the crime. See post, at 5-7
(citing In re Winship, 397 U.S. 358 (1970), and Sandstrom
v. Montana, 442 U.S. 510 (1979)). In point of fact, as the
statute at issue in Gipson demonstrates, legislatures frequently
enumerate alternative means of committing a crime without intending to
define separate elements or separate crimes.
[n.6]
The question whether statutory alternatives constitute independent
elements of the offense therefore does not, as the dissent would have it,
call for a mere tautology; rather, it is a substantial question of
statutory construction. See, e. g., United States v.
UCO Oil Co., 546 F. 2d, at 835-838.
In cases, like this one, involving
state criminal statutes, the dissent's "statutory alternatives" test
runs afoul of the fundamental principle that we are not free to
substitute our our own interpretations of state statutes for those of a
State's courts. If a State's courts have determined that certain
statutory alternatives are mere means of committing a single offense,
rather than independent elements of the crime, we simply are not at
liberty to ignore that determination and conclude that the alternatives
are, in fact, independent elements under state law. See Mullaney
v. Wilbur, 421 U.S. 684, 690-691 (1975) (declining to reexamine
the Maine Supreme Judicial Court's decision that, under Maine law, all
intentional or criminally reckless killings are aspects of the single
crime of felonious homicide); Murdock v. City of Memphis,
20 Wall. 590 (1875). In the present case, for example, by determining
that a general verdict as to first-degree murder is permissible under
Arizona law, the Arizona Supreme Court has effectively decided that,
under state law, premeditation and the commission of a felony are not
independent elements of the crime, but rather are mere means of
satisfying a single mens rea element. The issue in this case
therefore is not whether "the State must be held to its choice," post,
at 6-7, for the Arizona Supreme Court has authoritatively determined
that the State has chosen not to treat premeditation and the commission
of a felony as independent elements of the crime, but rather whether
Arizona's choice is unconstitutional.
B
It is tempting, of course, to follow
the example of Gipson to the extent of searching for some single
criterion that will serve to answer the question facing us. We are
convinced, however, of the impracticability of trying to derive any
single test for the level of definitional and verdict specificity
permitted by the Constitution, and we think that instead of such a test
our sense of appropriate specificity is a distillate of the concept of
due process with its demands for fundamental fairness, see, e. g.,
Dowling v. United States, 493 U.S. 342, 352-353 (1990),
and for the rationality that is an essential component of that fairness.
In translating these demands for fairness and rationality into concrete
judgments about the adequacy of legislative determinations, we look both
to history and wide practice as guides to fundamental values, as well as
to narrower analytical methods of testing the moral and practical
equivalence of the different mental states that may satisfy the mens
rea element of a single offense. The enquiry is undertaken with a
threshold presumption of legislative competence to determine the
appropriate relationship between means and ends in defining the elements
of a crime.
1
Judicial restraint necessarily
follows from a recognition of the impossibility of determining, as an
a priori matter, whether a given combination of facts is consistent
with there being only one offense. Decisions about what facts are
material and what are immaterial, or, in terms of Winship, 397 U.
S., at 364, what "fact[s] [are] necessary to constitute the crime," and
therefore must be proved individually, and what facts are mere means,
represent value choices more appropriately made in the first instance by
a legislature than by a court. Respect for this legislative competence
counsels restraint against judicial second-guessing, cf. Rostker
v. Goldberg, 453 U.S. 57, 65 (1981) ("lack of competence on the
part of the courts" relative to the legislature so counsels), which is
particularly appropriate in cases, like this one, that call state
definitions into question. "It goes without saying that preventing and
dealing with crime is much more the business of the States than it is of
the Federal Government, Irvine v. California, 347 U.S.
128, 134 (1954) (plurality opinion), and that we should not lightly
construe the Constitution so as to intrude upon the administration of
justice by the individual States." Patterson v. New York,
432 U.S. 197, 201 (1977).
There is support for such restraint
in our "burden-shifting" cases, which have made clear, in a slightly
different context, that the States must be permitted a degree of
flexibility in defining the "fact[s] necessary to constitute the crime"
under Winship. Each of those cases arose because a State defined
an offense in such a way as to exclude some particular fact from those
to be proved beyond a reasonable doubt, either by placing the burden on
defendants to prove a mitigating fact, see Patterson, supra
(extreme emotional disturbance); Martin v. Ohio, 480 U.S.
228 (1987) (self-defense); see also Mullaney, supra (heat of
passion or sudden provocation), or by allowing the prosecution to prove
an aggravating fact by some standard less than that of reasonable doubt,
McMillan v. Pennsylvania, 477 U.S. 79 (1986) (possession
of a firearm). In each case, the defendant argued that the excluded fact
was inherently "a fact necessary to constitute the offense" that
required proof beyond a reasonable doubt under Winship, even
though the fact was not formally an element of the offense with which he
was charged. See, e. g., 477 U. S., at 90.
The issue presented here is similar,
for under Arizona law neither premeditation nor the commission of a
felony is formally an independent element of first-degree murder; they
are treated as mere means of satisfying a mens rea element of
high culpability. The essence of petitioner's argument is that, despite
this unitary definition of the offense, each of these means must be
treated as an independent element as to which the jury must agree,
because premeditated murder and felony murder are inherently separate
offenses. Both here and in the burden-shifting cases, in other words, a
defendant argues that the inherent nature of the offense charged
requires the State to prove as an element of the offense some fact that
is not an element under the legislative definition.
In the burden-shifting cases, as
here, we have faced the difficulty of deciding, as an abstract matter,
what elements an offense must comprise. Recognizing "[o]ur inability to
lay down any `bright-line' test," McMillan, supra, at 91,
we have "stressed that . . . the state legislature's definition of the
elements of the offense is usually dispositive." Id., at 85; see
also Patterson, supra, at 201-202. We think that similar
restraint is appropriate here, although we recognize that, as in the
burden-shifting cases, "there are obviously constitutional limits beyond
which the States may not go." Patterson, supra, at 210;
see also McMillan, supra, at 86.
2
The use here of due process as a
measurement of the sense of appropriate specificity assumes the
importance of history and widely shared practice as concrete indicators
of what fundamental fairness and rationality require. In turning to
these sources we again follow the example set in the burdenshifting
cases, where we have often found it useful to refer both to history and
to the current practice of other States in determining whether a State
has exceeded its discretion in defining offenses. See Patterson,
supra, at 202, 207-209 nn. 10-11; see also Martin,
supra, at 235-236; Mullaney, supra, at 692-696. Where
a State's particular way of defining a crime has a long history, or is
in widespread use, it is unlikely that a defendant will be able to
demonstrate that the State has shifted the burden of proof as to what is
an inherent element of the offense, or has defined as a single crime
multiple offenses that are inherently separate. Conversely, a freakish
definition of the elements of a crime that finds no analogue in history
[n.7]
or in the criminal law of other jurisdictions will
lighten the defendant's burden.
Thus it is significant that
Arizona's equation of the mental states of premeditated murder and
felony murder as species of the blameworthy state of mind required to
prove a single offense of first-degree murder finds substantial
historical and contemporary echoes. At common law, murder was defined as
the unlawful killing of another human being with "malice aforethought."
The intent to kill and the intent to commit a felony were alternative
aspects of the single concept of "malice aforethought." See 3 J. Stephen,
History of the Criminal Law of England 21-22 (1883). Although American
jurisdictions have modified the common law by legislation classifying
murder by degrees, the resulting statutes have in most cases retained
premeditated murder and some form of felony murder (invariably including
murder committed in perpetrating or attempting to perpetrate a robbery)
as alternative means of satisfying the mental state that first-degree
murder presupposes. See 2 W. LaFave & A. Scott, Substantive Criminal Law
7.5, pp. 210-211, and nn. 21, 23, 24 (1986); ALI, Model Penal Code
210.2, p. 32, and n. 78 (1980). Indeed, the language of the Arizona
first-degree murder statute applicable here is identical in all relevant
respects to the language of the first statute defining murder by
differences of degree, passed by the Pennsylvania Legislature in 1794.
[n.8]
A series of state court decisions,
beginning with the leading case of People v. Sullivan, 173
N. Y. 122, 65 N. E. 989 (1903), have agreed that "it was not necessary
that all the jurors should agree in the determination that there was a
deliberate and premeditated design to take the life of the deceased, or
in the conclusion that the defendant was at the time engaged in the
commission of a felony, or an attempt to commit one; it was sufficient
that each juror was convinced beyond a reasonable doubt that the
defendant had committed the crime of murder in the first degree as that
offense is defined by the statute." Id., at 127, 65 N. E., at
989-990. See People v. Milan, 9 Cal. 3d 185, 507 P. 2d 956
(1973); People v. Travis, 170 Ill. App. 3d 873, 525 N. E.
2d 1137 (1988), cert. denied, 489 U.S. 1024 (1989); State v.
Fuhrmann, 257 N. W. 2d 619 (Iowa 1977); State v. Wilson,
220 Kan. 341, 552 P. 2d 931 (1976); Commonwealth v. Devlin,
335 Mass. 555, 141 N. E. 2d 269 (1957); People v. Embree,
70 Mich. App. 382, 246 N. W. 2d 6 (1976); State v. Buckman,
237 Neb. 936, — N. W. 2d — (1991); James v. State, 637 P.
2d 862 (Okla. Crim. 1981); State v. Tillman, 750 P. 2d 546
(Utah 1987); see also Brown v. State, 473 So. 2d 1260 (Fla.),
cert. denied, 474 U.S. 1038 (1985). Although the state courts have not
been unanimous in this respect, see State v. Murray, 308
Ore. 496, 782 P. 2d 157 (1989), there is sufficiently widespread
acceptance of the two mental states as alternative means of satisfying
the mens rea element of the single crime of first-degree murder
to persuade us that Arizona has not departed from the norm.
Such historical and contemporary
acceptance of Arizona's definition of the offense and verdict practice
is a strong in dication that they do not " `offen[d] some principle of
justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental,' " Patterson, 432 U. S., at 202
(quoting Speiser, 357 U. S., at 523), for we recognize the
high probability that legal definitions, and the practices comporting
with them, are unlikely to endure for long, or to retain wide acceptance,
if they are at odds with notions of fairness and rationality
sufficiently fundamental to be comprehended in due process. Cf.
Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922) (Holmes,
J.); Snyder, 291 U. S., at 111.
This is not to say that either
history or current practice is dispositive. In McMillan, for
example, even though many States had made the fact at issue (possession
of a weapon) an element of various aggravated offenses, we were
unwilling to conclude that Pennsylvania's decision to treat it as an
aggravating circumstance provable at sentencing by a mere preponderance
of the evidence deviated so far from the constitutional norm as to
violate the Due Process Clause. "That Pennsylvania's particular approach
has been adopted in few other States," we observed, "does not render
Pennsylvania's choice unconstitutional." 477 U. S., at 90; see also
Martin, 480 U. S., at 235-236 (relying on history, but not
current practice); Patterson, supra, at 211. Conversely, "
`neither the antiquity of a practice nor the fact of steadfast
legislative and judicial adherence to it through the centuries insulates
it from constitutional attack.' " Pacific Mutual Life Ins. Co.
v. Haslip, 499 U.S. 1, — (1991) (slip op. at 15) (quoting
Williams v. Illinois, 399 U.S. 235, 239 (1970)). In fine,
history and current practice are significant indicators of what we as a
people regard as fundamentally fair and rational ways of defining
criminal offenses, which are nevertheless always open to critical
examination.
3
It is, as we have
said, impossible to lay down any single analytical model for determining
when two means are so disparate as to exemplify two inherently separate
offenses. In the case before us, however, any scrutiny of the two
possibilities for proving the mens rea of first degree murder may
appropriately take account of the function that differences of mental
state perform in defining the relative seriousness of otherwise similar
or identical criminal acts. See generally ALI, Model Penal Code 2.02(2)
(1985) (defining differing mental states). If, then, two mental states
are supposed to be equivalent means to satisfy the mens rea
element of a single offense, they must reasonably reflect notions of
equivalent blameworthiness or culpability, whereas a difference in their
perceived degrees of culpability would be a reason to conclude that they
identified different offenses altogether. Petitioner has made out no
case for such moral disparity in this instance.
The proper critical question is not
whether premeditated murder is necessarily the moral equivalent of
felony murder in all possible instances of the latter. Our cases have
rec ognized that not all felony murders are of identical culpability,
compare Tison v. Arizona, 481 U.S. 137 (1987), with
Enmund v. Florida, 458 U.S. 782 (1982), and the same point is
suggested by examining state murder statutes, which frequently diverge
as to what felonies may be the predicate of a felony murder conviction.
Compare, e. g., Tenn. Code Ann. 39-13-202 (Supp. 1990) (theft as
predicate of first-degree felony-murder) with, e. g., Ariz. Rev.
Stat. Ann. 13-1105.A (1989) (theft not such a predicate).
The question, rather, is whether
felony murder may ever be treated as the equivalent of murder by
deliberation, and in particular whether robbery murder as charged in
this case may be treated as thus equivalent. This is in fact the very
question we considered only three Terms ago in the context of our
capital sentencing jurisprudence in Tison, supra. There we
held that "the reckless disregard for human life implicit in knowingly
engaging in criminal activities known to carry a grave risk of death
represents [such] a highly culpable mental state . . . that [it] may be
taken into account in making a capital sentencing judgment when that
conduct causes its natural, though not inevitable, lethal result." Id.,
at 157-158. We accepted the proposition that this disregard occurs, for
example, when a robber "shoots someone in the course of the robbery,
utterly indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim as well as taking the
victim's property." Id., at 157. Whether or not everyone would
agree that the mental state that precipitates death in the course of
robbery is the moral equivalent of premeditation, it is clear that such
equivalence could reasonably be found, which is enough to rule out the
argument that this moral disparity bars treating them as alternative
means to satisfy the mental element of a single offense.
[n.9]
We would not warrant that these
considerations exhaust the universe of those potentially relevant to
judgments about the legitimacy of defining certain facts as mere means
to the commission of one offense. But they do suffice to persuade us
that the jury's options in this case did not fall beyond the
constitutional bounds of fundamental fairness and rationality. We do not,
of course, suggest that jury instructions requiring increased verdict
specificity are not desirable, and in fact the Supreme Court of Arizona
has itself recognized that separate verdict forms are useful in cases
submitted to a jury on alternative theories of premeditated and felony
murder. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811,
817 (1989). We hold only that the Constitution did not command such a
practice on the facts of this case.
III
Petitioner's second contention is
that under Beck v. Alabama, 447 U.S. 625 (1980), he was
entitled to a jury instruction on the offense of robbery, which he
characterizes as a lesser included offense of robbery murder.
[n.10]
Beck held unconstitutional an Alabama
statute that prohibited lesser included offense instructions in capital
cases. Unlike the jury in Beck, the jury here was given the
option of finding petitioner guilty of a lesser included noncapital
offense, seconddegree murder. While petitioner cannot, therefore,
succeed under the strict holding of Beck, he contends that the
due process principles underlying Beck require that the jury in a
capital case be instructed on every lesser included noncapital offense
supported by the evidence, and that robbery was such an offense in this
case.
Petitioner misapprehends the
conceptual underpinnings of Beck. Our fundamental concern in
Beck was that a jury convinced that the defendant had committed some
violent crime but not convinced that he was guilty of a capital crime
might nonetheless vote for a capital conviction if the only alternative
was to set the defendant free with no punishment at all. We explained:
"[O]n the one hand, the
unavailability of the third option of convicting on a lesser included
offense may encourage the jury to convict for an impermissible reason —
its belief that the defendant is guilty of some serious crime and should
be punished. On the other hand, the apparently mandatory nature of the
death penalty [in Alabama] may encourage it to acquit for an equally
impermissible reason — that, whatever his crime, the defendant does not
deserve death. . . . [T]hese two extraneous factors . . . . introduce a
level of uncertainty and unreliability into the factfinding process that
cannot be tolerated in a capital case." Id., at 642 (footnote
omitted).
We repeatedly stressed the all-or-nothing
nature of the decision with which the jury was presented. See id.,
at 629, 630, 632, 634, 637, 642-643, and n. 19. As we later explained in
Spaziano v. Florida, 468 U.S. 447, 455 (1984), "[t]he
absence of a lesser included offense instruction increases the risk that
the jury will convict . . . simply to avoid setting the defendant free.
. . . The goal of the Beck rule, in other words, is to eliminate
the distortion of the factfinding process that is created when the jury
is forced into an all-or-nothing choice between capital murder and
innocence." See also Hopper v. Evans, 456 U.S. 605, 609
(1982). This central concern of Beck simply is not implicated in
the present case, for petitioner's jury was not faced with an all-or-nothing
choice between the offense of conviction (capital murder) and innocence.
Petitioner makes much of the fact
that the theory of his defense at trial was not that he murdered Mr.
Grove without premeditation (which would have supported a second-degree
murder conviction), but that, despite his possession of some of Mr.
Grove's property, someone else had committed the murder (which would
have supported a theft or robbery conviction, but not second-degree
murder). Petitioner contends that if the jurors had accepted his theory,
they would have thought him guilty of robbery and innocent of murder,
but would have been unable to return a verdict that expressed that view.
Because Beck was based on this Court's concern about "rules that
diminish the reliability of the guilt determination" in capital cases,
447 U. S., at 638, the argument runs, the jurors should have been given
the opportunity "to return a verdict in conformity with their reasonable
view of the evidence." Reply Brief for Petitioner 8. The dissent makes a
similar argument. Post, at 9.
The argument is unavailing, because
the fact that the jury's "third option" was second-degree murder rather
than robbery does not diminish the reliability of the jury's capital
murder verdict. To accept the contention advanced by petitioner and the
dissent, we would have to assume that a jury unconvinced that petitioner
was guilty of either capital or second-degree murder, but loath to
acquit him completely (because it was convinced he was guilty of robbery),
might choose capital murder rather than second-degree murder as its
means of keeping him off the streets. Because we can see no basis to
assume such irrationality, we are satisfied that the second-degree
murder instruction in this case sufficed to ensure the verdict's
reliability.
That is not to suggest that Beck
would be satisfied by instructing the jury on just any lesser included
offense, even one without any support in the evidence. Cf. Roberts
v. Louisiana, 428 U.S. 325, 334-335 (1976) (plurality opinion).
In the present case, however, petitioner concedes that the evidence
would have supported a second-degree murder conviction, Brief for
Petitioner 18-19, and that is adequate to indicate that the verdict of
capital murder represented no impermissible choice.
* * *
The judgment of the Supreme Court of
Arizona is
Affirmed.
*****
Notes
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