# Clemons v. Mississippi

* related portals: Supreme Court of the United States.
* sister projects: Wikipedia article, Wikidata item.

## Concurring Opinions

    Brennan
    Blackmun
United States Supreme Court
494 U.S. 738
Clemons v. Mississippi
No. 88-6873 Argued: Nov. 29, 1989. --- Decided: March 28, 1990
Syllabus
At the sentencing hearing following petitioner Clemons' Mississippi capital murder conviction, the trial court instructed the jury, among other things, that, in deciding whether to impose the death penalty, it should consider the following statutory aggravating factors: (1) that the murder was committed during the course of a "robbery for pecuniary gain," and (2) that it was an "especially heinous, atrocious or cruel" killing. Finding that both aggravating factors were present and that they outweighed any mitigating circumstances, the jury sentenced Clemons to death, and the State Supreme Court affirmed. The latter court, although acknowledging that the "especially heinous" factor was constitutionally invalid under Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372, held that that case did not require reversal, since, inter alia, the court had previously given the factor a constitutional limiting construction. The court then declared that, "beyond a reasonable doubt," the jury's verdict would have been the same without the "especially heinous" factor and that death was not too great a punishment when the aggravating and mitigating circumstances were weighed against each other.
Held:
1. Even in a "weighing" State like Mississippi, it is constitutionally permissible for an appellate court to reweigh the aggravating and mitigating evidence to uphold a jury-imposed death sentence that is based in part on an invalid or improperly defined aggravating circumstance. Pp. 744-750.
(a) Nothing in the Sixth Amendment, the Eighth Amendment, or any other constitutional provision requires the jury, as opposed to the appellate court, to impose the death sentence or to make the findings prerequisite to such an imposition after the appellate court has invalidated one of two or more aggravating circumstances found by the jury. Cf., e.g., Cabana v. Bullock, 474 U.S. 376, 385, 106 S.Ct. 689, 696, 88 L.Ed.2d 704; Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340. Pp. 745-746.
(b) Clemons' assertion that under Mississippi law only a jury has the authority to impose a death sentence and that he therefore has an unqualified liberty interest under the Due Process Clause of the Fourteenth Amendment to have the jury assess the consequences of the invalidation of one of the aggravating circumstances on which it has been instructed is rejected. This Court has no basis for disputing the state court's interpretation that state law did not require in these circumstances that it vacate the death sentence and remand for a new sentencing proceeding before a jury, but instead allowed it to decide for itself whether to affirm the sentence. Cf. Bullock, supra, at 387, and n. 4, 106 S.Ct. supra, at 697, and n. 4. Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175, distinguished. Pp. 746-747.
(c) Also rejected is Clemons' contention that, since appellate courts are unable to fully consider and give effect to a capital defendant's sentencing-phase mitigating evidence, it violates the Eighth Amendment for such a court to undertake to reweigh aggravating and mitigating circumstances in an attempt to salvage the death sentence imposed by a jury. Nothing in appellate weighing or reweighing is at odds with contemporary standards of fairness or is inherently unreliable and likely to result in arbitrary imposition of the death sentence. Appellate courts routinely decide whether the evidence supports a jury verdict and, in weighing-state capital cases, consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. Moreover supreme courts in death penalty States may well review many death sentences, while typical jurors will serve on only one such case during their lifetimes. Thus, state appellate courts can and do give each defendant an individualized and reliable sentencing determination based on his circumstances, background, and crime. Furthermore, contrary to Clemons' claim, an appellate court is able adequately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings. Pp. 748-750.
2. However, the case must be remanded because it is unclear whether the State Supreme Court correctly employed reweighing. Although the opinion below contains indications that the court properly performed a weighing function either by disregarding entirely the "especially heinous" factor and weighing only the remaining aggravating circumstance against the mitigating evidence or by including in the balance the "especially heinous" factor as narrowed by its prior decisions, the opinion can also be read as creating an automatic rule that, when an aggravating circumstance relied on by the jury has been invalidated, the sentence may be affirmed as long as there remains at least one valid and undisturbed aggravating circumstance. Such an automatic rule in a weighing State would be invalid under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1, for it would not give defendants the necessary individualized treatment that would result from actual weighing. Moreover, in light of the virtual silence of the opinion below as to Clemons' allegedly mitigating evidence, it is unclear whether the court gave that evidence sufficient consideration. Pp. 750-752.
3. Even if, under Mississippi law, the weighing of aggravating and mitigating circumstances were not an appellate, but a jury, function, it would be constitutionally permissible for the State Supreme Court to apply harmless-error analysis to the jury's consideration of the invalid aggravating circumstance. See, e.g., Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134. However, the case must be remanded because it is unclear whether the court below correctly employed such analysis. If the court's cryptic holding is read to suggest that it was "beyond a reasonable doubt" that the sentence would have been the same even if there had been no "especially heinous" instruction and only the "robbery for pecuniary gain" aggravating circumstance was to be balanced against the mitigating circumstances, the ultimate conclusion that the giving of the invalid instruction was harmless requires a detailed explanation based on the record, in light of the fact that the State repeatedly emphasized and argued the invalid factor during the sentencing hearing and placed little emphasis on the other factor. Moreover, although it is possible that the court intended to ask whether beyond reasonable doubt the result would have been the same had the invalid factor been properly defined in the jury instructions, and that on this basis it could have determined that the failure to instruct properly was harmless error, it is not clear that the court meant to follow this course. Pp. 752-754.
535 So.2d 1354, vacated and remanded.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 755. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 756.
Kenneth S. Resnick, Cincinnati, Ohio, for petitioner.
Marvin L. White, Jr., Jackson, Miss., for respondent.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse