Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/schaz2.asc

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Notes from main opinion

1
 The full statute provided:

"A murder which is perpetrated by means of poison or lying in
wait, torture or by any other kind of wilful, deliberate or
premeditated killing, or which is committed in avoiding or
preventing lawful arrest or effecting an escape from legal
custody, or in the perpetration of, or attempt to perpetrate,
arson, rape in the first degree, robbery, burglary, kidnapping,
or mayhem, or sexual molestation of a child under the age of
thirteen years, is murder of the first degree.  All other kinds
of murder are of the second degree."
 The statute has since been revised, but both premeditated
murder and murder in the course of a robbery still constitute
first degree murder.  See Ariz. Rev. Stat. Ann. MDRV 13-1105.A
(1989).

2
 Respondent contends that petitioner waived this
contention by failing to raise it in the lower Arizona courts.
Brief for Respondent 8-10.  The Arizona Supreme Court, however,
addressed the contention on the merits, 163 Ariz. 411, 417, 788
P. 2d 1162, 1168 (1989), thereby preserving the issue for our
review.  See Orr v. Orr, 440 U. S. 268, 274-275 (1979).

3
 See also Wechsler, A Rationale of the Law of Homicide: I,
37 Colum. L.  Rev. 701, 702-703 (1937); Perkins, A Rationale of
Mens Rea, 52 Harv. L.  Rev. 905, 926 (1939).

4
 Although our vagueness cases support the notion that a
requirement of proof of specific illegal conduct is fundamental
to our system of criminal justice, the principle is not dependent
upon or limited by concerns about vagueness.  A charge allowing a
jury to combine findings of embezzlement and murder would raise
identical problems regardless of how specifically embezzlement
and murder were defined.

5
 The court identified this right as a concomitant of the
federal criminal defendant's Sixth Amendment right to a unanimous
verdict, and subsequent courts following Gipson have adopted that
characterization.  E.  g., United States v. Beros, 833 F. 2d 455
(CA3 1987).  For the reasons given earlier, we think the right is
more accurately characterized as a due process right than as one
under the Sixth Amendment.  Although this difference in
characterization is important in some respects (chiefly, because
a state criminal defendant, at least in noncapital cases, has no
federal right to a unanimous jury verdict, see Johnson v.
Louisiana, 406 U.
S. 356 (1972); Apodaca v. Oregon, 406 U. S. 404 (1972)), it is
immaterial to the problem of how to go about deciding what level

of verdict specificity is constitutionally necessary.

6
 Because statutes frequently enumerate alternatives that
clearly are mere means of satisfying a single element of an
offense, adoption of the dissent's approach of requiring a
specific verdict as to every alternative would produce absurd
results.  For example, the Arizona first-degree murder statute at
issue here prohibited, inter alia, "wilful, deliberate or
premeditated killing." Ariz. Rev. Stat. Ann. MDRV 13-452 (Supp.
1973) (emphasis added).  Under the dissent's approach, juries in
prosecutions brought under the statute presumably should have
been required to deliver specific verdicts as to each of the
three: wilfullness, deliberation, and premeditation.

7

 We note, however, the perhaps obvious proposition that
history will be less useful as a yardstick in cases dealing with
modern statutory offenses lacking clear common law roots than it
is in cases, like this one, that deal with crimes that existed at
common law.

8
 The Pennsylvania statute provided:

"[A]ll murder, which shall be perpetrated by means of poison, or
by lying in wait, or by any other kind of willful, deliberate and
premeditated killing, or which shall be committed in the
perpetration, or attempt to perpetrate any arson, rape, robbery,
or burglary, shall be deemed murder of the first degree; and all
other kinds of murder shall be deemed murder in the second
degree." 1794 Pa. Laws, ch. 1766, MDRV 2.

9
 The dissent's focus on the "risks of different
punishment," post, at 7-8, and n. 4, for premeditated and felony
murder, ignores the fact that the Arizona sentencing statute
applicable to petitioner, Ariz. Rev. Stat.  Ann. MDRV 13-453
(Supp. 1973), authorized the same maximum penalty (death) for
both means of committing first-degree murder.  See McMillan v.
Pennsylvania, 477 U. S. 79, 87-88 (1986) (relying on fact that
under Pennsylvania law possession of a weapon "neither alters the
maximum penalty for the crime committed nor creates a separate
offense calling for a separate penalty").  Moreover, the
dissent's concern that a general verdict does not provide the
sentencing judge with sufficient information about the jury's
findings to provide a proper premise for the decision whether or
not to impose the death penalty, post, at 7-8, goes only to the
permissibility of a death sentence imposed in such circumstances,
not to the issue currently before us, which is the permissibility
of the conviction.  To make the point by example, even if the
trial judge in this case had satisfied any possible specific
verdict concerns by instructing the jurors that they were
required to agree on a single theory of the crime, the dissent's
"insufficient sentencing information" concern would remain unless
the judge had also taken the additional step (a step unrelated to
petitioner's right to jury agreement on the specific conduct he
committed) of requiring them to return separate forms of verdict.
The only relevant question for present purposes is what the jury
must decide, not what information it must provide the sentencing
judge.

10
 Petitioner also contends that the jury should have been
instructed on the offense of theft, against which respondent
argues that any claim for a lesser included theft offense
instruction was waived.  Given respondent's concession that
petitioner has preserved his claim for a robbery instruction, and
our view of the scope of Beck, see infra, at 20-22, there is no
need to resolve this waiver issue.


 Justice Scalia, concurring in part and concurring in the
judgment.

 The crime for which a jury in Yavapai County, Arizona,
convicted Edward Harold Schad in 1985 has existed in the
Anglo-American legal system, largely unchanged, since at least
the early 16th century, see 3 J. Stephen, A History of the
Criminal Law of England 45 (1883); R. Moreland, Law of Homicide
9-10 (1952).  The common-law crime of murder was the unlawful
killing of a human being by a person with "malice aforethought"
or "malice prepense," which consisted of an intention to kill or
grievously injure, knowledge that an act or omission would
probably cause death or grievous injury, an intention to commit a
felony, or an intention to resist lawful arrest.  Stephen, supra,
at 22; see also 4 W. Blackstone, Commentaries 198-201 (1769); 1
M. Hale, Pleas of the Crown 451-466 (1st Am. ed. 1847).

 The common law recognized no degrees of murder; all
unlawful killing with malice aforethought received the same
punishment -- death.  See F.  Wharton, Law of Homicide 147 (3d
ed. 1907); Moreland, supra, at 199.  The rigor of this rule led
to widespread dissatisfaction in this country.  See McGautha v.
California, 402 U. S. 183, 198 (1971).  In 1794, Pennsylvania
divided common-law murder into two offenses, defining the crimes
thus:

      [A]ll murder which shall be perpetrated by means of
      poison, or lying in wait, or by any other kind of
      willful, deliberate, or premeditated killing; or which
      shall be committed in the perpetration, or attempt to
      perpetrate any arson, rape, robbery, or burglary, shall
      be deemed murder of the first degree; and all other
      kinds of murder shall be deemed murder in the second
      degree." 1794 Pa. Laws, ch. 1766, MDRV 2.

That statute was widely copied, and down to the present time the
United States and most States have a single crime of first-degree
murder that can be committed by killing in the course of a
robbery as well as premeditated killing.  See, e. g., 18 U. S. C.
MDRV 1111; Cal. Penal Code Ann. MDRV 189 (West 1988 and Supp.
1991); Kan. Stat. Ann. MDRV 21.3401 (Supp. 1990); Mich. Comp.
Laws Ann. MDRV 750.316 (1991); Neb. Rev. Stat. MDRV 28-303
(1989). {1} It is Arizona's variant of the 1794 Pennsylvania
statute under which Schad was convicted in 1985 and which he
challenges today.

 Schad and the dissenting Justices would in effect have us
abolish the crime of first-degree murder and declare that the Due
Process Clause of the Fourteenth Amendment requires the
subdivision of that crime into (at least) premeditated murder and
felony murder.  The plurality rejects that course-- correctly,
but not in my view for the correct reason.

 As the plurality observes, 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.  See, e. g.,
People v. Sullivan, 173 N. Y. 122, 65 N.E. 989 (1903); cf. H.
Joyce, Indictments 15 561-562, pp. 654-657 (2d ed.  1924); W.
Clark, Criminal Procedure 15 99-103, pp. 322-330 (2d. ed. 1918);
1 J. Bishop, Criminal Procedure 15 434-438, pp. 261-265 (2d. ed.
1872).  That rule is not only constitutional, it is probably
indispensable in a system that requires a unanimous jury verdict
to convict.  When a woman's charred body has been found in a
burned house, and there is ample evidence that the defendant set
out to kill her, it would be absurd to set him free because six
jurors believe he strangled her to death (and caused the fire
accidentally in his hasty escape), while six others believe he
left her unconscious and set the fire to kill her.  While that
seems perfectly obvious, it is also true, as the plurality points
out, see ante, at 7, that one can conceive of novel "umbrella"
crimes (a felony consisting of either robbery or failure to file
a tax return) where permitting a 6-6 verdict would seem contrary
to due process.

 The issue before us is whether the present crime falls
into the former or the latter category.  The plurality makes
heavy weather of this issue, because it starts from the
proposition that "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,"
ante, at 15 (internal quotations omitted).  That is true enough
with respect to some constitutional attacks, but not, in my view,
with respect to attacks under either the procedural component,
see Pacific Mutual Life Insurance Co. v.  Haslip, 499 U. S. ---,
--- (1991) (slip op., at 15) (Scalia, J., concurring in
judgment), or the so-called "substantive" component, see Michael
H. v.  Gerald D., 491 U. S. 110, 121-130 (1989) (plurality
opinion), of the Due Process Clause.  It is precisely the
historical practices that define what is "due." "Fundamental
fairness" analysis may appropriately be applied to departures
from traditional American conceptions of due process; but when
judges test their individual notions of "fairness" against an
American tradition that is deep and broad and continuing, it is
not the tradition that is on trial, but the judges.

 And that is the case here.  Submitting killing in the
course of a robbery and premeditated killing to the jury under a
single charge is not some novel composite that can be subjected
to the indignity of "fundamental fairness" review.  It was the
norm when this country was founded, was the norm when the
Fourteenth Amendment was adopted in 1868, and remains the norm
today.  Unless we are here to invent a Constitution rather than
enforce one, it is impossible that a practice as old as the
common law and still in existence in the vast majority of States
does not provide that process which is "due."

 If I did not believe that, I might well be with the
dissenters in this case.  Certainly the plurality provides no
satisfactory explanation of why (apart from the endorsement of
history) it is permissible to combine in one count killing in the
course of robbery and killing by premeditation.  The only point
it makes is that the depravity of mind required for the two may
be considered morally equivalent.  Ante, at 17-19.  But the
petitioner here does not complain about lack of moral
equivalence: he complains that, as far as we know, only six
jurors believed he was participating in a robbery, and only six
believed he intended to kill.  Perhaps moral equivalence is a
necessary condition for allowing such a verdict to stand, but
surely the plurality does not pretend that it is sufficient.  (We
would not permit, for example, an indictment charging that the
defendant assaulted either X on Tuesday or Y on Wednesday,
despite the "moral equivalence" of those two acts.) Thus, the
plurality approves the Arizona practice in the present case
because it meets one of the conditions for constitutional
validity.  It does not say what the other conditions are, or why
the Arizona practice meets them.  With respect, I do not think
this delivers the "critical examination," ante, at 17, which the
plurality promises as a substitute for reliance upon historical
practice.  In fact, I think its analysis ultimately relies upon
nothing but historical practice (whence does it derive even the
"moral equivalence" requirement?) -- but to acknowledge that
reality would be to acknowledge a rational limitation upon our
power, which bob-tailed "critical examination" obviously is not.
"Th[e] requirement of [due process] is met if the trial is had
according to the settled course of judicial proceedings.  Due
process of law is process due according to the law of the land."
Walker v. Sauvinet, 92 U. S. 90, 93 (1876) (citation omitted).

 With respect to the second claim asserted by petitioner,
I agree with Justice Souter's analysis, and join Part III of his
opinion.  For these reasons, I would affirm the judgment of the
Supreme Court of Arizona.


NOTES TO OPINION OF JUSTICE SCALIA

1
 Still other States never established degrees of murder,
and retain a single crime of "murder" that encompasses both
premeditated killing and killing in the course of a robbery.
See, e. g., S. C. Code MDRV 16-3-10 (1985).

 Because I disagree with the result reached on each of the
two separate issues before the Court, and because what I deem to
be the proper result on either issue alone warrants reversal of
petitioner's conviction, I respectfully dissent.

I

 As In re Winship, 397 U. S. 358 (1970), makes clear, due
process mandates "proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which [the defendant] is
charged." Id., at 364.  In finding that the general jury verdict
returned against petitioner meets the requirements of due
process, the plurality ignores the import of Winship's holding.
In addition, the plurality mischaracterizes the nature of the
constitutional problem in this case.

/* The point that the dissent is make is that the government must
prove within a reasonable doubt that the defendant did one or
another: kill the victim during a robbery, or with premediatation
kill the victim, and that a case which does not convince all
jurors on ONE of these points lessens the government's burden. */

 It is true that we generally give great deference to the
States in defining the elements of crimes.  I fail to see,
however, how that truism advances the plurality's case.  There is
no failure to defer in recognizing the obvious: that pre
meditated murder and felony murder are alternative courses of
conduct by which the crime of first-degree murder may be
established.  The statute provides:

 "A murder which is perpetrated by means of poison or
lying in wait, torture or by any other kind of wilful, deliberate
or premeditated killing, or which is committed in avoiding or
preventing lawful arrest or effecting an escape from legal
custody, or in the perpetration of, or attempt to perpetrate,
arson, rape in the first degree, robbery, burglary, kidnapping,
or mayhem, or sexual molestation of a child under the age of
thirteen years, is murder of the first degree.  All other kinds
of murder are of the second degree." Ariz. Rev. Stat. Ann. MDRV
13-452 (Supp. 1973).


The statute thus sets forth three general categories of conduct
which constitute first-degree murder: a "wilful, deliberate or
premeditated killing"; a killing committed to avoid arrest or
effect escape; and a killing which occurs during the attempt or
commission of various specified felonies.

 Here, the prosecution set out to convict petitioner of
first-degree murder by either of two different paths,
premeditated murder and felony murder/robbery.  Yet while these
two paths both lead to a conviction for first-degree murder, they
do so by divergent routes possessing no elements in common except
the fact of a murder.  In his closing argument to the jury, the
prosecutor himself emphasized the difference between premeditated
murder and felony murder:

"There are two types of first degree murder, two ways for first
degree murder to be committed.  [One] is premeditated murder.
There are three elements to that.  One, that a killing take
place, that the defendant caused someone's death.  Secondly, that
he do so with malice.  And malice simply means that he intended
to kill or that he was very reckless in disregarding the life of
the person he killed. . . .
 "And along with the killing and the malice, attached to
that killing is a third element, that of premeditation, which
simply means that the defendant contemplated that he would cause
death, he reflected upon that.
 "The other type of first degree murder, members of the
jury, is what we call felony murder.  It only has two components
[sic] parts.  One, that a death be caused, and, two, that that
death be caused in the course of a felony, in this case a
robbery.  And so if you find that the defendant committed a
robbery and killed in the process of that robbery, that also is
first degree murder." App. 6-7.


 Unlike premeditated murder, felony murder does not
require that the defendant commit the killing or even intend to
kill, so long as the defendant is involved in the underlying
felony.  On the other hand, felony murder -- but not premeditated
murder -- requires proof that the defendant had the requisite
intent to commit and did commit the underlying felony.  State v.
McLoughlin, 139 Ariz. 481, 485, 679 P. 2d 504, 508 (1984).
Premeditated murder, however, demands an intent to kill as well
as premeditation, neither of which is required to prove felony
murder.  Thus, contrary to the plurality's assertion, see ante,
at 13, the difference between the two paths is not merely one of
a substitution of one mens rea for another.  Rather, each
contains separate elements of conduct and state of mind which
cannot be mixed and matched at will. {1} It is particularly
fanciful to equate an intent to do no more than rob with a
premeditated intent to murder.

 Consequently, a verdict that simply pronounces a
defendant "guilty of first-degree murder" provides no clues as to
whether the jury agrees that the three elements of premed itated
murder or the two elements of felony murder have been proven
beyond a reasonable doubt.  Instead, it is entirely possible that
half of the jury believed the defendant was guilty of
premeditated murder and not guilty of felony murder/robbery,
while half believed exactly the reverse.  To put the matter
another way, the plurality affirms this conviction without
knowing that even a single element of either of the ways for
proving first-degree murder, except the fact of a killing, has
been found by a majority of the jury, let alone found unanimously
by the jury as required by Arizona law.  A defendant charged with
first-degree murder is at least entitled to a verdict --
something petitioner did not get in this case as long as the
possibility exists that no more than six jurors voted for any one
element of first-degree murder, except the fact of a killing. {2}

 The means by which the plurality attempts to justify the
result it reaches do not withstand scrutiny.  In focusing on our
vagueness cases, see ante, at 6-7, the plurality misses the
point.  The issue is not whether the statute here is so vague
that an individual cannot reasonably know what conduct is
criminalized.  Indeed, the statute's specificity renders our
vagueness cases inapplicable.  The problem is that the Arizona
statute, under a single heading, criminalizes several alternative
patterns of conduct.  While a State is free to construct a
statute in this way, it violates due process for a State to
invoke more than one statutory alternative, each with different
specified elements, without requiring that the jury indicate on
which of the alternatives it has based the defendant's guilt.

 The plurality concedes that "nothing in our history
suggests that the Due Process Clause would permit a State to
convict anyone under a charge of `Crime' so generic that any
combination of jury findings of embezzlement, reckless driving,
murder, burglary, tax evasion, or littering, for example, would
suffice for conviction." Ante, at 7.  But this is very close to
the effect of the jury verdict in this case.  Allowing the jury
to return a generic verdict following a prosecution on two
separate theories with specified elements has the same effect as
a jury verdict of "guilty of crime" based on alternative theories
of embezzlement or reckless driving.  Thus the statement that
"[i]n Arizona, first degree murder is only one crime regardless
whether it occurs as a premeditated murder or a felony murder,"
State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624, 627 (1982),
neither recognizes nor resolves the issue in this case.

 The plurality likewise misses the mark in attempting to
compare this case to those in which the issue concerned proof of
facts regarding the particular means by which a crime was
committed.  See ante, at 5-6.  In the case of burglary, for
example, the manner of entering is not an element of the crime;
thus, Winship would not require proof beyond a reasonable doubt
of such factual details as whether a defendant pried open a
window with a screwdriver or a crowbar.  It would, however,
require the jury to find beyond a rea sonable doubt that the
defendant in fact broke and entered, because those are the
"fact[s] necessary to constitute the crime." 397 U.  S., at 364.
{3}

 Nor do our cases concerning the shifting of burdens and
the creation of presumptions help the plurality's cause.  See
ante, at 12.  Although this Court consistently has given
deference to the State's definition of a crime, the Court also
has made clear that having set forth the elements of a crime, a
State is not free to remove the burden of proving one of those
elements from the prosecution.  For example, in Sandstrom v.
Montana, 442 U.S. 510 (1979), the Court recognized that "under
Montana law, whether the crime was committed purposely or
knowingly is a fact necessary to constitute the crime of
deliberate homicide," and stressed that the State therefore could
not shift the burden of proving lack of intent to the defendant.
Id., at 520-521.  Conversely, in Patterson v. New York, 432 U.
S. 197, 205-206 (1977), the Court found that it did not violate
due process to require a defendant to establish the affirmative
defense of extreme emotional disturbance, because "[t]he death,
the intent to kill, and causation are the facts that the State is
required to prove beyond a reasonable doubt if a person is to be
convicted of murder.  No further facts are either presumed or
inferred in order to constitute the crime." Here, the question is
not whether the State "must be permitted a degree of flexibility"
in defining the elements of the offense.  See ante, at 12.
Surely it is entitled to that deference.  But having determined
that premeditated murder and felony murder are separate paths to
establishing first-degree murder, each containing a separate set
of elements from the other, the State must be held to its choice.
{4} Cf. Evitts v. Lucey, 469 U.S. 387, 401 (1985).  To allow the
State to avoid the consequences of its legislative choices
through judicial interpretation would permit the State to escape
federal constitutional scrutiny even when its actions violate
rudimentary due process.

 The suggestion that the state of mind required for felony
murder/robbery and that for premeditated murder may reasonably be
considered equivalent, see ante, at 18, is not only unbelievable,
but it also ignores the distinct consequences that may flow from
a conviction for each offense at sentencing.  Assuming that the
requisite statutory aggravating circumstance exists, the death
penalty may be imposed for premeditated murder, because a
conviction necessarily carries with it a finding that the
defendant intended to kill.  See Ariz. Rev. Stat. Ann.  MDRV
13-703 (1989).  This is not the case with felony murder, for a
conviction only requires that the death occur during the felony;
the defendant need not be proven to be the killer.  Thus, this
Court has required that in order for the death penalty to be
imposed for felony murder, there must be a finding that the
defendant in fact killed, attempted to kill, or intended that a
killing take place or that lethal force be used, Enmund v.
Florida, 458 U. S. 782, 797 (1982), or that the defendant was a
major participant in the felony and exhibited reckless
indifference to human life, Tison v. Arizona, 481 U. S. 137, 158
(1987).

 In the instant case, the general verdict rendered by the
jury contained no finding of intent or of actual killing by
petitioner.  The sentencing judge declared, however:

"[T]he court does consider the fact that a felony murder
instruction was given in mitigation, however there is not
evidence to indicate that this murder was merely incidental to a
robbery.  The nature of the killing itself belies that. . . .
"The court finds beyond a reasonable doubt that the defendant
attempted to kill Larry Grove, intended to kill Larry Grove and
that defendant did kill Larry Grove.

"The victim was strangled to death by a ligature drawn very
tightly about the neck and tied in a double knot.  No other
reasonable conclusion can be drawn from the proof in this case,
notwithstanding the felony murder instruction." Tr. 8-9 (Aug. 29,
1985).


Regardless of what the jury actually had found in the guilt phase
of the trial, the sentencing judge believed the murder was
premeditated.  Contrary to the plurality's suggestion, see ante,
at 18, n. 9, the problem is not that a general verdict fails to
provide the sentencing judge with sufficient information
concerning whether to impose the death sentence.  The issue is
much more serious than that.  If in fact the jury found that
premeditation was lacking, but that petitioner had committed
felony murder/robbery, then the sentencing judge's finding was in
direct contravention of the jury verdict.  It is clear,
therefore, that the general jury verdict creates an intolerable
risk that a sentencing judge may subsequently impose a death
sentence based on findings that contradict those made by the jury
during the guilt phase, but not revealed by their general
verdict.  Cf. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811,
817 (1989).


/* The majority did not even attempt to discuss the fact that the
Judge premised the sentencing on solely a theory of
pre-mediatated murder. */

II

 I also cannot agree that the requirements of Beck v.
Alabama, 447 U. S.  625 (1980), were satisfied by the
instructions and verdict forms in this case.  Beck held that
"when the evidence unquestionably establishes that the defendant
is guilty of a serious, violent offense -- but leaves some doubt
with respect to an element that would justify conviction of a
capital offense -- the failure to give the jury the `third
option' of convicting on a lesser included offense would seem
inevitably to enhance the risk of an unwarranted conviction."
Id., at 637.  The majority finds Beck satisfied because the jury
here had the opportunity to convict petitioner of second-degree
murder.  See ante, at 20-21.  But that alternative provided no
"third option" to a choice between convicting petitioner of
felony murder/robbery and acquitting him completely, because, as
the State concedes, see Tr. of Oral Arg. 51-52, second-degree
murder is a lesser included offense only of premeditated murder.
Thus, the Arizona Supreme Court has declared that " `[t]he jury
may not be instructed on a lesser degree of murder than first
degree where, under the evidence, it was committed in the course
of a robbery.' " State v. Clayton, 109 Ariz. 587, 595, 514 P. 2d
720, 728 (1973), quoting State v. Kruchten, 101 Ariz. 186, 196,
417 P. 2d 510, 520 (1966), cert. denied, 385 U. S. 1043 (1967)
(emphasis added).  Consequently, if the jury believed that the
course of events led down the path of felony murder/robbery,
rather than premeditated murder, it could not have convicted
petitioner of second-degree murder as a legitimate "third option"
to capital murder or acquittal.

 The State asserts that felony murder has no lesser
included offenses.  {5} In order for a defendant to be convicted
of felony murder, however, there must be evidence to support a
conviction on the underlying felony, and the jury must be
instructed as to the elements of the underlying felony.  Although
the jury need not find that the underlying felony was completed,
the felony murder statute requires there to be at least an
attempt to commit the crime.  As a result, the jury could not
have convicted petitioner of felony murder/robbery without first
finding him guilty of robbery or attempted robbery. {6} Indeed,
petitioner's first conviction was reversed because the trial
judge had failed to instruct the jury on the elements of robbery.
142 Ariz. 619, 691 P. 2d 710 (1984).  As the Arizona Supreme
Court declared, "Fundamental error is present when a trial judge
fails to instruct on matters vital to a proper consideration of
the evidence.  Knowledge of the elements of the underlying
felonies was vital for the jurors to properly consider a felony
murder theory." Id., at 620-621, 691 P. 2d, at 711-712 (citation
omitted).

 It is true that the rule in Beck only applies if there is
in fact a lesser included offense to that with which the
defendant is charged, for "[w]here no lesser included offense
exists, a lesser included offense instruction detracts from,
rather than enhances, the rationality of the process." Spaziano
v. Florida, 468 U. S. 447, 455 (1984).  But while deference is
due state legislatures and courts in defining crimes, this
deference has constitutional limits.  In the case of a compound
crime such as felony murder, in which one crime must be proven in
order to prove the other, the underlying crime must, as a matter
of law, be a lesser included offense of the greater.

 Thus, in the instant case, robbery was a lesser included
offense of the felony murder/robbery for which petitioner was
tried.  The Arizona Supreme Court acknowledged that "the evidence
supported an instruction and conviction for robbery," had robbery
been a lesser included offense of felony murder/robbery.  163
Ariz. 411, 417, 788 P. 2d 1162, 1168 (1989).  Consequently, the
evidence here met "the independent prerequisite for a lesser
included offense instruction that the evidence at trial must be
such that a jury could rationally find the defendant guilty of
the lesser offense, yet acquit him of the greater." Schmuck v.
United States, 489 U.S. 705, 716, n. 8 (1989); see Keeble v.
United States, 412 U. S. 205, 208 (1973).  Due process required
that the jury be given the opportunity to convict petitioner of
robbery, a necessarily lesser included offense of felony
murder/robbery.  See Stevenson v. United States, 162 U. S. 313,
319-320 (1896).

 Nor is it sufficient that a "third option" was given here
for one of the prosecution's theories but not the other.  When
the State chooses to proceed on various theories, each of which
has lesser included offenses, the relevant lesser included
instructions and verdict forms on each theory must be given in
order to satisfy Beck.  Anything less renders Beck, and the due
process it guarantees, meaningless.

 With all due respect, I dissent.


NOTES TO DISSENTING OPINION

1
 Changes to the Arizona first-degree murder statute since
the date of the murder in question make it even clearer that
felony murder and premeditated murder have different elements and
involve different mentes reae.  The statute now provides that the
two offenses are alternative means of establishing first-degree
murder.  First, a person is guilty if "[i]ntending or knowing
that his conduct will cause death, such person causes the death
of another with premeditation." Ariz. Rev. Stat. Ann.  MDRV
13-1105(A)(1) (1989).  Second, a person is guilty if "[a]cting
either alone or with one or more other persons such person
commits or attempts to commit [any one of a series of specified
felonies], and in the course of and in furtherance of such
offense or immediate flight from such offense, such person or
another person causes the death of any person." MDRV
13-1105(A)(2).  The antecedent of the current statute, which used
substantially the same language, took effect on October 1, 1978,
less then two months after the killing at issue occurred.  1977
Ariz. Sess. Laws, Ch.  142, MDRV 60.

2
 Even the Arizona Supreme Court has acknowledged that the
lack of information concerning juror agreement may call into
question the validity of a general jury verdict when the
prosecution proceeds under alternative theories.  State v. Smith,
160 Ariz. 507, 513, 774 P. 2d 811, 817 (1989).  Indeed,
petitioner's first trial exemplified this danger.  There the
State proceeded on three theories: premeditated murder, felony
murder/robbery, and felony murder/kidnapping.  The trial judge
failed to instruct the jury on either of the underlying felonies,
and the Arizona Supreme Court held this to be fundamental error.
142 Ariz. 619, 620, 691 P. 2d 710, 711 (1984).  Petitioner's
conviction was reversed because it was impossible to tell from
the general jury verdict whether petitioner had been found guilty
of premeditated murder or felony murder, for which the
instructions had been deficient.  Id., at 621, 691 P. 2d, at 712.
Cf. Sandstrom v. Montana, 442 U. S. 510, 526 (1979).

3
 For similar reasons, the plurality's focus on the
statutorily enumerated means of satisfying a given element of an
offense, see ante, at 10, n. 6, is misplaced.

4
 Even if the crime of first-degree murder were generic,
that different categories of the offense carry risks of different
punishment is constitu tionally significant.  In Mullaney v.
Wilbur, 421 U. S. 684 (1975), for example, this Court concluded
that the absence of "heat of passion on sudden provocation,"
while not an expressly stated element of the offense of
"homicide," was essential to reduce the punishment category of
the crime from that of murder to manslaughter.  Id., at 697, 699.
Consequently, the State there violated In re Winship, 397 U. S.
358 (1970), and principles of due process by requiring the
defendant to establish the absence of the intent required for
murder, and thereby rebut the presumption of malice.  Mullaney,
supra, at 703-704.  As discussed below, the disparate intent
requirements of premeditated murder and felony murder have
lifeor-death consequences at sentencing.

5
 Arizona law has not been consistent on this point.
Arizona cases have long said that "there is no lesser included
homicide offense of the crime of felony murder since the mens rea
necessary to satisfy the premeditation element of first degree
murder is supplied by the specific intent required for the
felony." State v. Arias, 131 Ariz. 441, 444, 641 P. 2d 1285, 1288
(1982) (emphasis added).  Recent cases have omitted the crucial
word "homicide." See, e. g., State v. LaGrand, 153 Ariz. 21,
29-30, 734 P. 2d 563, 571-572, cert. denied, 484 U. S. 872-873
(1987).

6
 In this Court's recent decision in Schmuck v. United
States, 489 U. S.  705 (1989), we adopted the "elements" test for
defining "necessarily included" offenses for purposes of Federal
Rule of Criminal Procedure 31(c).  "Under this test, one offense
is not `necessarily included' in another unless the elements of
the lesser offense are a subset of the elements of the charged
offense." Schmuck, supra, at 716.  See also Berra v. United
States, 351 U. S. 131, 134 (1956).  Here that test is met, for
petitioner could not be convicted of felony murder/robbery unless
the jury found that a robbery, or an attempt to commit robbery,
had occurred.