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91-7094.ZS
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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
RICHMOND v. LEWIS, DIRECTOR, ARIZONA
DEPARTMENT OF CORRECTIONS, et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 91-7094. Argued October 13, 1992-Decided December 1, 1992
Following a sentencing hearing on petitioner Richmond's first degree
murder conviction, the Arizona trial judge found three statutory
aggravating factors, including, under Ariz. Rev. Stat. Ann.
13-703(F)(6), that the offense was committed in an ``especially
heinous, cruel or depraved manner'' ((F)(6) factor). Concluding also
that there were no mitigating circumstances sufficiently substantial
to warrant leniency, the judge sentenced Richmond to death. The
State Supreme Court affirmed, with each of the five justices joining
one of three opinions. Among other things, the principal opinion for
two of the justices found that the (F)(6) factor-which had been
narrowed in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, subsequent
to Richmond's sentencing-was applicable. The principal opinion also
conducted an independent review of the sentence and concluded that
Richmond's mitigation evidence did not outweigh the aggravating
factors. In a special concurrence, two of the other justices disagreed
that the offense came within the (F)(6) factor as narrowed by Gretz-
ler, but agreed that a death sentence was appropriate even absent
that factor. The fifth justice filed a dissenting opinion urging rever-
sal. After this Court denied certiorari, the Federal District Court
declined to grant Richmond habeas corpus relief, and the Court of
Appeals affirmed.
Held:Richmond's death sentence violates the Eighth Amendment. The
(F)(6) factor was unconstitutionally vague at the time the sentencing
judge gave it weight. Walton v. Arizona, 497 U.S. 639, 654. The
State Supreme Court did not cure this error, because the two spe-
cially concurring justices did not actually reweigh the aggravating
and mitigating circumstances in affirming the sentence. See, e. g.,
Clemons v. Mississippi, 494 U.S. 738. Those justices did not purport
to perform a new sentencing calculus, or even mention the evidence
in mitigation. Nor can such a reweighing be presumed, since lan-
guage in the concurrence plainly indicates that Richmond's aggra-
vated criminal background provided a conclusive justification for the
death penalty, thereby evincing the sort of automatic affirmance rule
proscribed in a ``weighing'' State such as Arizona. Id., at 751.
Because a majority of the State Supreme Court did not perform a
curative reweighing in voting to affirm Richmond's death sentence,
the question whether the principal opinion properly relied on the
(F)(6) factor as narrowed in Gretzler need not be decided by this
Court. Pp.6-12.
948 F.2d 1473, reversed and remanded.
O'Connor, J., delivered the opinion of the Court, in which Rehn-
quist, C. J., and White, Blackmun, Stevens, Kennedy, Souter, and
Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Scalia,
J., filed a dissenting opinion.