The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_5551/90_5551.s

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Subject:  SCHAD v. ARIZONA, Syllabus




    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


SCHAD v. ARIZONA


certiorari to the supreme court of arizona

No. 90-5551.  Argued February 27, 1991 -- Decided June 21, 1991

After he was found with a murder victim's vehicle and other belongings,
petitioner Schad was indicted for first-degree murder.  At trial, the
prosecutor advanced both premeditated and felony murder theories, against
which Schad claimed that the circumstantial evidence proved at most that he
was a thief, not a murderer.  The court refused Schad's request for an
instruction on theft as a lesser included offense, but charged the jury on
second-degree murder.  The jury convicted him of first-degree murder, and
he was sentenced to death.  The State Supreme Court affirmed, rejecting
Schad's contention that the trial court erred in not requiring the jury to
agree on a single theory of firstdegree murder.  The court also rejected
Schad's argument that Beck v. Alabama, 447 U. S. 625, required an
instruction on the lesser included offense of robbery.

Held: The judgment is affirmed.

163 Ariz. 411, 788 P. 2d 1162, affirmed.

    Justice Souter delivered the opinion of the Court with respect to Part
III, concluding that Beck v. Alabama, 447 U. S. 625 -- which held
unconstitutional a state statute prohibiting lesser included offense
instructions in capital cases -- did not entitle Schad to a jury
instruction on robbery.  Beck was based on the concern that a jury
convinced that the defendant had committed some violent crime but not
convinced that he was guilty of a capital offense might nonetheless vote
for a capital conviction if the only alternative was to set him free with
no punishment at all.  See id., at 629, 630, 632, 634, 637, 642-643, and n.
19.  This concern simply is not implicated here, since the jury was given
the "third option" of finding Schad guilty of a lesser included noncapital
offense, second-degree murder.  It would be irrational to assume that the
jury chose capital murder rather than second-degree murder as its means of
keeping a robber off the streets, and, thus, the trial court's choice of
instructions sufficed to ensure the verdict's reliability.  Pp. 19-22.

    Justice Souter, joined by The Chief Justice, Justice O'Connor, and
Justice Kennedy, concluded in Part II that Arizona's characterization of
first-degree murder as a single crime as to which a jury need not agree on
one of the alternative statutory theories of premeditated or felony murder
is not unconstitutional.  Pp. 4-19.

    (a) The relevant enquiry is not, as Schad argues, whether the
Constitution requires a unanimous jury in state capital cases.  Rather, the
real question here is whether it was constitutionally acceptable to permit
the jury to reach one verdict based on any combination of the alternative
findings.  Pp. 4-5.

    (b) The long-established rule that a jury need not agree on which overt
act, among several, was the means by which a crime was committed, provides
a useful analogy.  Nevertheless, the Due Process Clause does place limits
on a State's capacity to define different states of mind as merely
alternative means of committing a single offense; there is a point at which
differences between those means become so important that they may not
reasonably be viewed as alternatives to a common end, but must be treated
as differentiating between what the Constitution requires to be treated as
separate offenses subject to separate jury findings.  Pp. 5-11.

    (c) It is impossible to lay down any single test for determining when
two means are so disparate as to exemplify two inherently separate
offenses.  Instead, the concept of due process, with its demands for
fundamental fairness and for the rationality that is an essential component
of that fairness, must serve as the measurement of the level of
definitional and verdict specificity permitted by the Constitution.  P.
11.

    (d) The relevant enquiry must be undertaken with a threshold
presumption of legislative competence.  Decisions about what facts are
material and what are immaterial, or, in terms of In re Winship, 397 U. S.
358, 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.  There is support for such restraint in this
Court's "burden-shifting" cases, which have made clear, in a slightly
different context, that the States must be permitted a degree of
flexibility in determining what facts are necessary to constitute a
particular offense within the meaning of Winship.  See, e. g., Patterson v.
New York, 432 U. S. 197, 201-202, 210.  Pp. 11-13.

    (e) In translating the due process demands for fairness and rationality
into concrete judgments about the adequacy of legislative determinations,
courts should look both to history and widely shared state practice as
guides to fundamental values.  See, e. g., id., at 202.  Thus it is
significant here that Arizona's equation of the mental states of
premeditated and felony murder as a species of the blameworthy state of
mind required to prove a single offense of first-degree murder finds
substantial historical and contemporary echoes.  See, e. g., People v.
Sullivan, 173 N. Y. 122, 127, 65 N. E. 989, 989-990; State v. Buckman, 237
Neb. 936, --- N. W. 2d ---.  Pp. 13-17.

    (f) 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.
See Tison v. Arizona, 481 U. S. 137, 157-158.  This is enough to rule out
the argument that a moral disparity bars treating the two mental states as
alternative means to satisfy the mental element of a single offense.  Pp.
17-18.

    (g) Although the foregoing considerations may not exhaust the universe
of those potentially relevant, they are sufficiently persuasive that the
jury's options in this case did not fall beyond the constitutional bounds
of fundamental fairness and rationality.  P. 19.


    Justice Scalia would reach the same result as the plurality with
respect to Schad's verdict-specificity claim, but for a different reason.
It has long been the general rule that when a single crime can be committed
in various ways, jurors need not agree upon the mode of commission.  As the
plurality observes, one can conceive of novel "umbrella" crimes that could
not, consistent with due process, be submitted to a jury on disparate
theories.  But first-degree murder, which has in its basic form existed in
our legal system for centuries, does not fall into that category.  Such a
traditional crime, and a traditional mode of submitting it to the jury, do
not need to pass this Court's "fundamental fairness" analysis; and the
plurality provides no persuasive justification other than history in any
event.  Pp. 1-5.

Souter, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to Part III, in which Rehnquist, C. J., and
O'Connor, Scalia, and Kennedy, JJ., joined, and an opinion with respect to
Parts I and II, in which Rehnquist, C. J., and O'Connor and Kennedy, JJ.,
joined.  Scalia, J., filed an opinion concurring in part and concurring in
the judgment.  White, J., filed a dissenting opinion, in which Marshall,
Blackmun, and Stevens, JJ., joined.

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