The Supreme Court/The Supreme Court.iso/pc/ascii/1992/92_9093/92_9093.zd1

Text File | 1994-06-12 | 16.0 KB | 320 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 92-9093
--------
JOHN JOSEPH ROMANO, PETITIONER
v. OKLAHOMA
on writ of certiorari to the court of criminal
appeals of oklahoma
[June 13, 1994]

  Justice Ginsburg, with whom Justice Blackmun,
Justice Stevens, and Justice Souter join, dissenting.
  In Caldwell v. Mississippi, 472 U. S. 320 (1985), this
Court overturned a capital sentence as inadequately
reliable because of a statement made by the prosecutor,
in closing argument at the penalty phase of the trial.
The Caldwell prosecutor told the jury: -[Y]our [sentenc-
ing] decision is not the final decision-; -the decision you
render is automatically reviewable by the [state] Su-
preme Court.-  Id., at 325-326.  Responding to the issue
presented in Caldwell, this Court observed that capital
sentencing jurors, required to determine -whether a
specific human being should die at the hands of the
State,- id., at 329, are -placed in a very unfamiliar
situation and called on to make a very difficult and
uncomfortable choice.-  Id., at 333.  Such jurors, the
Court noted, might find -highly attractive- the prosecu-
tor's suggestion that persons other than themselves
would bear -responsibility for any ultimate determina-
tion of death.-  Id., at 332-333.
  The possibility the jury might have embraced the
prosecutor's suggestion, the Court concluded, rendered
the imposition of the death penalty inconsistent with the
Constitution's requirement of individualized and reliable
capital sentencing procedures.  See id., at 323, 329-330,
340-341.  Emphasizing the -`truly awesome responsibil-
ity'- imposed upon capital sentencing juries, id., at 329,
quoting McGautha v. California, 402 U. S. 183, 208
(1971), the Court held:
-[I]t is constitutionally impermissible to rest a death
sentence on a determination made by a sentencer
who has been led to believe that the responsibility
for determining the appropriateness of the defend-
ant's death rests elsewhere.-  472 U. S., at 328-329.
  In my view, this principle, reiterated throughout the
Court's Caldwell opinion, covers the present case: The
jury's consideration of evidence, at the capital sentencing
phase of petitioner Romano's trial, that a prior jury had
already sentenced Romano to death, infected the jury's
life-or-death deliberations as did the prosecutorial
comments condemned in Caldwell.  Accordingly, I would
vacate the death sentence imposed upon Romano and
remand for a new sentencing hearing.

                      I
  At the penalty phase of Romano's trial for the murder
of Roger Safarty, the prosecution sought to put before
the jury a copy of the -Judgment and Sentence- from an
earlier and unrelated prosecution.  That document
revealed that Romano had been convicted of the first-
degree murder of Lloyd Thompson and that he was to be
executed for that crime.  Defense counsel offered to
stipulate to Romano's conviction for the Thompson
murder, but objected to the jury's consideration of the
death sentence.  The trial court overruled defense coun-
sel's objection and admitted the -Judgment and Sen-
tence- document.  That document stated that Romano
had given -no good reason why [the] Judgment and
Sentence [for the murder of Thompson] should not be
pronounced,- and commanded the State's Department of
Corrections -to put the said JOHN JOSEPH ROMANO
to death.-  App. 6.  The jury in the instant, Safarty
murder case also sentenced Romano to death.
  During the pendency of Romano's appeal from his
conviction and sentence for the Safarty murder, the
Oklahoma Court of Criminal Appeals vacated his
conviction for the Thompson murder.  Romano v. State,
827 P. 2d 1335 (1992).  Romano urged on appeal in the
Safarty case that, under Caldwell v. Mississippi, it was
impermissible to place before the jury, as relevant to its
deliberations whether Romano should live or die,
evidence that he was already under sentence of death.
  The Oklahoma court rejected that contention and
affirmed Romano's conviction and death sentence for the
Safarty murder.  847 P. 2d 368, 390 (Okla. Crim. App.
1993).  In so ruling, the court acknowledged that
-[l]earning that the defendant had previously received a
death sentence for another murder could diminish the
jury's sense of importance of its role and mitigate the
consequences of [its] decision.-  Ibid.  The court further
recognized that -evidence of the imposition of the death
penalty by another jury is not relevant in determining
the appropriateness of the death sentence for the instant
offense.-  Id., at 391.  Nevertheless, the court concluded,
-when the jury is properly instructed as to its role and
responsibility in making such a determination we
cannot, on appellate review, conclude that the jur[ors] in
any way shifted the responsibility for their decision or
considered their decision any less significant than they
would otherwise.-  Id., at 390.  That judgment is now
before the Court.

                     II
  In Caldwell, this Court found constitutionally imper-
missible a prosecutor's statement, at the penalty phase
of a capital trial, that the jury's decision was -not the
final decision- because it was -automatically reviewable.-
The prosecutor's assurances were impermissible, the
Court ruled, because they created an unacceptable risk
that the jury would -minimize the importance of its
role,- -believ[ing] that the responsibility for determining
the appropriateness of the defendant's death rest[ed]
elsewhere.-  Caldwell, 472 U. S., at 333, 329.  This
belief, the Court explained, is inconsistent with the
-heightened `need for reliability'- in capital sentencing.
Id., at 323, quoting Woodson v. North Carolina, 428
U. S. 280, 305 (1976) (plurality opinion).
  The risk of diminished jury responsibility was also
grave in Romano's case.  Revealing to the jury that
Romano was condemned to die for the Thompson murder
signaled to the jurors in the Safarty murder case that
Romano faced execution regardless of their life-or-death
decision in the case before them.  Jurors so informed
might well believe that Romano's fate had been sealed
by the previous jury, and thus was not fully their
responsibility.  See People v. Hope, 116 Ill. 2d 265, 274,
508 N. E. 2d 202, 206 (1986) (-`[T]he jury's awareness
of defendant's prior death sentence would diminish its
sense of responsibility . . . .  Assuming that defendant
was already going to be executed, the jurors may
consider their own decision considerably less significant
than they otherwise would.'-), quoting People v. Davis,
97 Ill. 2d 1, 26, 452 N. E. 2d 525, 537 (1983); West v.
State, 463 So. 2d 1048, 1052-1053 (Miss. 1985) (-[I]f the
jury knows that the [defendant] is already under a
sentence of death it would tend to relieve them of their
separate responsibility to make that determination.-).
  A juror uncertain whether to vote for death or for life
might be swayed by the knowledge that -`another jury
had previously resolved the identical issue adversely to
defendant.'-  Hope, supra, at 274, 508 N. E. 2d, at 206,
quoting Davis, supra, at 26, 452 N. E. 2d, at 537.  Such
a juror, although -unconvinced that death is the appro-
priate punishment, . . . might nevertheless wish to `send
a message' of extreme disapproval for the defendant's
acts,- Caldwell, 472 U. S., at 331, reasoning that the
defendant was already to be executed in any event.
Furthermore, jurors otherwise inclined to hold out for a
life sentence might acquiesce in a death penalty they did
not truly believe warranted.  Cf. id., at 333 (-[O]ne can
easily imagine that in a case in which the jury is
divided on the proper sentence, the presence of appellate
review could effectively be used as an argument for why
those jurors who are reluctant to invoke the death
sentence should nevertheless give in.-).
  Respondent State of Oklahoma correctly observes,
however, that evidence of a prior death sentence may
not produce a unidirectional bias toward death.  Brief
for Respondent 23.  Some jurors, otherwise inclined to
believe the defendant deserved the death penalty for the
crime in the case before them, might nonetheless be
anxious to avoid any feeling of responsibility for the
defendant's execution.  Jurors so minded might vote for
a life sentence, relying on the prior jury's determination
to secure defendant's death.  See ante, at 12.  The
offending prosecutorial comments in Caldwell, by
contrast, created an apparently unidirectional -bias
toward a death sentence,- for the appellate review that
the Caldwell jurors were encouraged to consider could
occur only if the jury sentenced the defendant to death,
not if it voted for life.  472 U. S., at 331-332.  Okla-
homa maintains that Romano remains outside the
Caldwell principle, because he is unable to demonstrate
that the evidence of his prior death sentence tilted the
jurors toward death.
  Romano's prosecutor, at least, seems to have believed
that informing the jurors of the prior death sentence
would incline them toward death, for otherwise, he
probably would not have insisted upon introducing the
-Judgment and Sentence- itself, over Romano's objection,
and despite Romano's offer to stipulate to the underly-
ing conviction.  Most critically, Caldwell, as I compre-
hend that decision, does not require Romano to prove
that the prosecutor's hunch was correct, either in
Romano's case in particular or in death penalty cases
generally.
 Caldwell dominantly concerns the capital sentencing
jury's awareness and acceptance of its -`awesome re-
sponsibility.'-  Id., at 341.  To assure that acceptance,
this Court's Eighth Amendment jurisprudence instructs,
capital sentencing procedures must be especially reli-
able.  See id., at 323 (prosecutor's comments were -in-
consistent with the Eighth Amendment's heightened
`need for reliability in the determination that death is
the appropriate punishment in a specific case,'- quoting
Woodson v. North Carolina, supra, at 305); 472 U. S., at
341 (death sentence -does not meet the standard of
reliability that the Eighth Amendment requires,- when
it may have been affected by the State's attempt -to
minimize the jury's sense of responsibility for determin-
ing the appropriateness of death-).  Under Caldwell's
reasoning, diminution of jurors' sense of responsibility
violates the Eighth Amendment's reliability requirement,
whether or not a defendant can demonstrate empirically
that the effect of this diminution was to bias the jurors'
judgment toward death.  According to Caldwell, if a
reviewing court -cannot say- that an effort -to minimize
the jury's sense of responsibility for determining the
appropriateness of death . . . had no effect on the sen-
tencing decision, . . . [t]he sentence of death must . . .
be vacated- as unreliable.  Ibid.

                     III
 The Court today reads Caldwell to apply only if the
jury has been -affirmatively misled regarding its role in
the sentencing process.-  Ante, at 7.  According to the
Court, because no information, incorrect when conveyed,
was given to the jury responsible for sentencing Romano
for Safarty's murder, -[t]he infirmity identified in
Caldwell is simply absent in this case.-  Ante, at 7.
 The Court rests its rendition of Caldwell on the prem-
ise that only a plurality of the Court's members en-
dorsed the principle I regard as pivotal: Diminution of
the jury's sense of responsibility -preclude[s] the jury
from properly performing its [charge] to make an indi-
vidualized determination of the appropriateness of the
death penalty.-  See ante, at 6-7, citing Caldwell, 472
U. S., at 330-331, 341.  In fact, however, key portions
of Caldwell that the Court attributes to a plurality of
four were joined by five of the eight Justices who partic-
ipated in that case.  Justice O'Connor parted company
with the other members of the majority only as to a
discrete, three-paragraph section, Part IV-A (id., at
335-336), in which -[t]he Court,- in her view, -seem[ed]
generally to characterize information regarding appellate
review as `wholly irrelevant to the determination of the
appropriate sentence.'-  Id., at 342 (opinion concurring
in part and concurring in the judgment), quoting id., at
336.  Justice O'Connor explained that she did not read
California v. Ramos, 463 U. S. 992 (1983), -to imply
that the giving of nonmisleading and accurate informa-
tion regarding the jury's role in the sentencing scheme
is irrelevant to the sentencing decision.-  472 U. S., at
341 (emphasis omitted).  It was in that context that
Justice O'Connor stated her view, quoted ante, at 7,
that -the prosecutor's remarks were impermissible,- not
because they referred to the existence of post-sentence
review, but -because they were inaccurate and mislead-
ing in a manner that diminished the jury's sense of
responsibility.-  472 U. S., at 342.
 Justice O'Connor's concurring opinion thus appears
to rest on -grounds narrower- than those relied upon by
the other members of the Court's Caldwell majority, see
ante, at 7, only insofar as her concurrence disavowed
any implication that the -giving of accurate instructions
regarding postsentencing procedures,- 472 U. S., at 342,
is irrelevant or unconstitutional.  The evidence of Roma-
no's death sentence for the murder of Thompson, how-
ever, was not information regarding postsentencing
procedures Romano might pursue.  Nor, as the Okla-
homa Court of Criminal Appeals found, was the -Judg-
ment and Sentence- for Thompson's murder relevant to
the Safarty jury's sentencing decision.  847 P. 2d, at
391 (-evidence of the imposition of the death penalty by
another jury is not relevant in determining the appro-
priateness of the death sentence for the instant of-
fense-).  Accordingly, I do not read Justice
O'Connor's concurring opinion as narrowing the Court's
Caldwell holding with respect to the issue this case
presents.  Nor, for reasons set out in the margin, do I
agree with the Court that several post-Caldwell cases,
beginning with Darden v. Wainwright, 477 U. S. 168
(1986), confirm the narrow interpretation of Caldwell
the Court announces today.  See ante, at 7.
 Finally, the Court relies, as did the Oklahoma Court
of Criminal Appeals, on the trial court's instruction to
the jurors that -[t]he importance and worth of the evi-
dence is for you to decide,- together with the court's
disavowal of any view as to the appropriate punishment.
Ante, at 3.  The Court quotes the Oklahoma court's
conclusion that -`[i]t was never conveyed or intimated in
any way, by the court or the attorneys, that the jury
could shift its responsibility in sentencing or that its
role in any way had been minimized.'-  Ante, at 8, quot-
ing 847 P. 2d, at 390.
 Plainly, the trial court's instruction to consider the
evidence cannot resolve the Caldwell problem in this
case: The -Judgment and Sentence- form, bearing Roma-
no's prior death sentence, was part of the evidence the
jury was told to consider.  Further, once it is acknowl-
edged that evidence of the prior death sentence -could
diminish the jury's sense of importance of its role and
mitigate the consequences of [its] decision,- 847 P. 2d,
at 390, it cannot be said that the court or attorneys did
not -conve[y] or intimat[e]- that the jury's role was
diminished.  The prosecution proffered the death-com-
manding -Judgment and Sentence- as evidence, and the
trial court admitted it-over Romano's objection, and
despite his offer to stipulate to the conviction.  As dis-
cussed supra, at 4-7, admission of that evidence risked
leading jurors to -minimize the importance of [their]
role,- -believ[ing] that the responsibility for determining
the appropriateness of the defendant's death rest[ed]
elsewhere.-  Caldwell, 472 U. S., at 333, 329.  This risk
was -unacceptable in light of the ease with which [it]
could have been minimized.-  Turner v. Murray, 476
U. S. 28, 36 (1986) (opinion of White, J.).

                     IV
 Permitting the jury to consider evidence that Romano
was already under sentence of death, while that jury
determined whether Romano should live or die, threat-
ened to -minimize the jury's sense of responsibility for
determining the appropriateness of death.-  Unable to
say that the jury's consideration of Romano's prior death
sentence -had no effect on the [instant] sentencing
decision,- Caldwell, 472 U. S., at 341, I would vacate
that decision and remand the case for a new sentencing
hearing.