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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
first-degree 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.


EDWARD HAROLD SCHAD, Jr., PETITIONER
v. ARIZONA


on writ of certiorari to the supreme court of 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 is a certainly arguable case. The split between the
Justices so indicates. It is also interesting as one of the
relatively few cases of criminal law going to the US Supreme
Court from state courts in which the lower court found for the
state. Generally, the US Supreme Court has been taking cases
found in favor of defendants and reversing. */


 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 violation 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. MDRV 13-452
(Supp. 1973). {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 first-degree
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. {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
proposition 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
present 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"). {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. {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. MDRV
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" {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. {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 {7} or in the criminal law of other
jurisdictions will lighten the defendant's burden.

/* This is on the strange hypothesis that if a state criminal law
is unclear but has been construed so not to be as so obscure, it
is legal. This presumes that not only is the defendant
responsible for reading the state statutes, but also the cases
construing the statute. */

 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 MDRV 7.5, pp.
210-211, and nn. 21, 23, 24 (1986); ALI, Model Penal Code MDRV
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. {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
MDRV 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 recognized
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. MDRV 39-13-202 (Supp. 1990)
(theft as predicate of first-degree felony-murder) with, e. g.,
Ariz. Rev. Stat. Ann.  MDRV 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. {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. {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.