# Parker v. Dugger/Dissent White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion White
Justice WHITE, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice KENNEDY join, dissenting.
"It is not our function to decide whether we agree with the majority of the advisory jury or with the trial judge and the Florida Supreme Court." Spaziano v. Florida, 468 U.S. 447, 467, 104 S.Ct. 3154, 3166, 82 L.Ed.2d 340 (1984). The Court long ago gave up second guessing state supreme courts in situations such as the one presented here. Nevertheless, the Court today undertakes and performs that task in a manner that is inconsistent with our precedents and with the Court's role as the final arbiter of federal constitutional issues of great importance. Therefore, I dissent.
The entire weight of the Court's opinion rests on a reconstruction of the record the likes of which has rarely, if ever, been performed before in this Court. Once armed with its dubious reconstruction of the facts, the Court proceeds to determine that the Florida Supreme Court's conclusion that the trial judge found no nonstatutory mitigating circumstances is not " 'fairly supported by the record.' " Ante, at 320 (quoting 28 U.S.C. § 2254(d)(8)). The Court then relies on that determination to assert that the Florida Supreme Court "did not conduct an independent review here," ante, at 321, even though the Court admits that the Florida Supreme Court's review was at least thorough enough to cause it to strike down two aggravating factors found by the trial judge. Ante, at 322. The Court ultimately concludes that Parker was deprived of "meaningful appellate review" which, for reasons not fully explained, apparently entitles him to relief under the Eighth Amendment of the Constitution. As I see it, these actions conflict with two lines of the Court's precedent.
First, the Court's application of the "fairly supported by the record" standard of § 2254(d)(8) is inconsistent with the way that standard has been applied in other cases and gives far too little deference to state courts that are attempting to apply their own law faithfully and responsibly. For example, in Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam ), a Florida case remarkably similar to this one, the Court indicated that § 2254(d)(8) requires federal habeas courts to give considerable deference to factual determinations made by any state court. In Goode, there was a question whether the trial judge who had sentenced the defendant to death had relied on an aggravating factor that was not proper for him to consider under Florida law. In deciding the defendant's appeal, the Florida Supreme Court concluded that the trial judge had not actually relied on the improper factor. On federal habeas review, a Federal District Court agreed with the Florida Supreme Court but the Court of Appeals reversed the death sentence. This Court, after reviewing the record, determined that, at best, the trial court record was ambiguous on this issue and for that very reason we held that "the Court of Appeals erred in substituting its view of the facts for that of the Florida Supreme Court." 464 U.S., at 85, 104 S.Ct., at 382.
There is little if any factual distinction between this case and Goode. Here, the trial judge stated that he found "no mitigating circumstances that outweigh the aggravating circumstances." App. 61. The majority apparently seizes upon the ambiguity inherent in the judge's use of the word "that," arguing that what he must have meant was that there were mitigating circumstances but that they did not outweigh the aggravators rather than meaning that no mitigating circumstances existed at all. The Florida Supreme Court obviously interpreted his statement in the latter fashion.
To state the Court's argument is to refute it. It is clear that the trial judge's statement is ambiguous, as was the case in Goode. The fact that the Justices of this Court cannot agree as to the meaning of the trial judge's statement is strong evidence that the statement is at least ambiguous. Moreover, it is likely that the judge-in following the statutory requirement that he make the weighing determination in writing, see Fla.Stat. § 921.141(3) (1985)-was simply tracking statutory language which requires him, if he chooses to impose a sentence of death, to find "[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances." § 921.141(3)(b). That statement itself is ambiguous because it does not require the trial court to specify whether mitigating circumstances exist but are outweighed, or whether there simply are no such circumstances. I therefore see no reason to disturb the Florida Supreme Court's conclusion that the trial court found that no nonstatutory mitigating circumstances had been established.
Our recent decision in Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), confirms that this Court traditionally gives great deference to state-court determinations such as the one at issue here. In Jeffers, we rejected the contention that federal courts should second-guess state-court findings regarding the existence of aggravating factors and instead held that the question for federal habeas courts is only whether any rational factfinder could have found the factor to be established. Id., at 780-781, 110 S.Ct., at ----. I see no reason to differentiate between state-court conclusions regarding mitigating circumstances as opposed to those regarding aggravating factors. Moreover, as the Court expressly acknowledged in both Goode and Jeffers, the deferential review that is required does not vary depending on the level at which the findings are made in state court; it is the same whether a trial court or the state supreme court makes the finding. Goode, supra, 464 U.S., at 85, 104 S.Ct., at 382; Jeffers, supra, 497 U.S., at 783, 110 S.Ct., at ----.
Even more troubling in this case is the Court's creation of a new and unexplained "meaningful appellate review" standard for federal courts to apply in habeas proceedings. The Court suggests that the Florida Supreme Court's "error" in "misreading" the trial judge's findings is conclusive evidence that the court did not independently review Parker's claims and that this failure rendered Parker's sentence "arbitrary" in violation of the Eighth Amendment to the Constitution.
This holding rests on a faulty assumption about the legal nature of the Florida Supreme Court's review of the trial court's findings and in any event finds no support in our cases. The Court previously has held that a state appellate court's interpretation of a trial court's remarks or a state court's finding that particular aggravating circumstances exist, even if considered a legal issue as opposed to a factual determination, is an issue of state law which is essentially unreviewable in federal court. Goode, 464 U.S., at 84, 104 S.Ct., at 381; Jeffers, supra, 497 U.S., at 783, 110 S.Ct., at ----. It is axiomatic that in general mere errors of state law are not the concern of this Court, Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1257, 92 L.Ed. 1683 (1948); Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983); Goode, supra, 464 U.S., at 86, 104 S.Ct., at 383; Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984); Jeffers, supra, 497 U.S., at ----, 110 S.Ct., at ----, and that the "views of the State's highest court with respect to state law are binding on the federal courts." Goode, supra, 464 U.S., at 84, 104 S.Ct., at 382 (citing cases); Clemons v. Mississippi, 494 U.S. 738, 747, 110 S.Ct. 1441, ----, 108 L.Ed.2d 725 (1990). The Court today suggests that the Eighth Amendment will have been violated any time a federal court decides that a state appellate court has committed an error of state law in a capital case or has not rigorously followed some state appellate procedure. The Court points to no cases supporting this radical revision of our Eighth Amendment jurisprudence.
Here, the only "error" the Court identifies is the Florida Supreme Court's "misreading" of the trial court's findings. The Court does not conclude that the trial court failed or refused to consider Parker's evidence of nonstatutory mitigating factors. Cf. Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). Indeed, it notes that "he said he did." Ante, at 314. Absent such a conclusion, it is difficult to see how any "error" here could have been of federal constitutional dimensions. The Eighth Amendment "does not, by its terms, regulate the procedures of sentencing as opposed to the substance of punishment." Walton v. Arizona, 497 U.S. 639, 670, 110 S.Ct. 3047, 3066, 111 L.Ed.2d 511 (1990) (SCALIA, J., concurring in part and concurring in judgment). "Thus, the procedural elements of a sentencing scheme come within the prohibition, if at all, only when they are of such a nature as systematically to render the infliction of a cruel punishment 'unusual.' " Ibid. (emphasis added). Therefore, even were I to accept the Court's dubious reconstruction of the factual record in this case, I see no constitutional infirmity in the Florida Supreme Court's judgment.
Of course, entirely apart from the dubious legal propositions relied upon by the Court today, the Court's house of cards topples if in fact the trial judge's statements can plausibly be interpreted as indicating that he found no nonstatutory mitigating circumstances to exist. In his written sentencing order, the trial judge premised his discussion of aggravating and mitigating circumstances with the following statement:
"Before imposing sentence, this Court has carefully studied and considered all the evidence and testimony at trial and at advisory sentence proceedings, the presentence Investigation Report, the applicable Florida Statutes, the case law, and all other factors touching upon this case." App. 47.
The trial court ultimately concluded that "[t]here are no mitigating circumstances that outweigh the aggravating circumstances." Id., at 61. The Court concedes that the trial court's prefatory statement indicates that the judge did in fact consider the evidence of nonstatutory mitigating circumstances presented by Parker, ante, at 314-315, but nonetheless asserts that his concluding statement cannot be interpreted to mean that he did not find any nonstatutory mitigating circumstances to exist. As explained above, the Court-hard as it may try-cannot plausibly escape the fact that the statement is ambiguous. Accordingly, as noted above, under Wainwright v. Goode, supra, federal courts are required to defer to the Florida Supreme Court's interpretation of the trial court's findings.
Furthermore, there is nothing implausible about the interpretation the Florida Supreme Court gave to the trial court's order. The Court asserts that the trial judge must have found "drug and alcohol intoxication, more lenient sentencing for the perpetrator of the crime, [and Parker's] character and background," ante, at 315, as nonstatutory mitigating circumstances, and that "the strongest indication that the trial judge found nonstatutory mitigating circumstances is that the judge overrode the jury's sentencing recommendation for the Sheppard murder, but not for the Padgett murder." Ante, at 316. The latter proposition, according to the Court, flows from the fact that although the mitigating evidence with respect to both murders was the same, the judge overrode only one of the sentences. The Court reasons that if the trial judge had actually found that there were no mitigating circumstances in either case, then he surely would have overridden both life sentences. Ante, at 737.
This reasoning ignores the differences between the two crimes. The trial court found six aggravating circumstances with respect to the Sheppard murder and five with respect to the Padgett murder. Although superficially that difference may not appear very significant, in reality it is, because the aggravating circumstance that the court found present in the Sheppard murder but not in the Padgett murder was that the Sheppard murder was "committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody." App. 57. It cannot be seriously disputed that this was the primary, if not sole, motive for killing Nancy Sheppard. This factor goes to the very nature of the Sheppard murder and readily distinguishes it from the Padgett murder.
Padgett was killed in a dispute over payment for illegal drugs. After Tommy Groover and Parker confronted Padgett about his drug debts, they took him to a junkyard "where Groover and Padgett engaged in a fist fight." Id., at 40. They then drove Padgett to a deserted area and "Groover shot Padgett to death," ibid., with Parker present. The trial court found that Parker and "Groover toyed with their victim for hours as a cat with a mouse." Id., at 59. Thus, it is clear that Groover was a willing participant in the Padgett murder and that he alone actually killed the victim.
By contrast, Sheppard, a teenager, was essentially an innocent bystander who had no connection to Parker other than that her boyfriend was Padgett. Parker and his accomplices tricked her into accompanying them to the scene of the Padgett murder where they brutally killed her in a pathetic attempt to avoid detection for the Padgett murder. On Parker's orders, William Long shot Sheppard in the head as she knelt down near Padgett's body. Id., at 58, 59. Parker had threatened to kill Long if he did not shoot Sheppard, see id., at 56, 58, 59, a threat driven home by the fact that Parker had previously been convicted and imprisoned for shooting Long, see Tr. 1257-1259, 1340, 1884, 1888, and Parker himself slit Sheppard's throat to insure that the job was done. App. 58, 59. It is not necessary to resort to the imaginative stretch the Court engages in today to see why the trial court might have chosen to override the jury recommendation for the Sheppard murder but not the Padgett murder.
Likewise, an examination of the record reveals why neither the trial court nor the Florida Supreme Court "must" have found nonstatutory mitigating circumstances sufficiently established to require weighing against the aggravating circumstances. The Court's reliance on the disparity in the sentence Parker's accomplice, Long, received is nothing more than another creative reconstruction of the record. The State's theory at trial was that Long feared Parker and that he shot Sheppard only after Parker threatened to kill him if he did not kill Sheppard. In its written sentencing order, the trial court specifically found that Parker "forced William Long to shoot Nancy Sheppard," id., at 56, that he made "threats to kill Long," ibid., that he "threatened and forced William Long to shoot Nancy Sheppard," id., at 58, and then Parker "cut her throat and took her ring and necklace," ibid., and finally that Parker "ordered William Long to shoot Nancy or himself be killed," and that after Long shot her, Parker "screamed 'shoot her again, shoot her again.' " Id., at 59. As noted previously, the idea that Parker could effectively threaten Long is made more credible by the fact that Parker had previously been convicted and imprisoned for shooting Long. Tr. 1257-1259, 1340, 1884, 1888. Incredibly, without even suggesting that these findings of the trial court are erroneous, the Court asserts that Long was more culpable with regard to the Sheppard murder than Parker and that his more lenient sentence therefore should be a mitigating circumstance in Parker's case. Ante, at 316. Neither the record nor common sense supports that assertion.
The Court also suggests that the trial judge must have found "drug and alcohol intoxication" and Parker's "character and background," ante, at 315, as nonstatutory mitigating circumstances. Again, however, the record compels no such conclusion. With respect to the "intoxication" circumstance, all but one of the references the Court makes to the trial transcript involve either inconclusive testimony by various witnesses being questioned by Parker's counsel in an obvious attempt to establish that Parker was intoxicated on drugs or alcohol, see Tr. 1401-1402, 1497, 1540-1541, 1619, 1738, or the self-serving testimony of Parker himself. See id., at 1834, 1880-1881.
Furthermore, this testimony is not corroborated by any physical or medical evidence, and it is for the most part inconclusive and equivocal. For example, when Long was asked whether Parker and some of his companions were high at the time they went to get Nancy Sheppard, he replied "[a]s far as I know. I didn't ask them but they seemed like they were." Id., at 1402. Denise Long, who was visited by Parker and Tommy Groover after the murders had been committed, was asked whether Parker and Groover were high when she saw them. Her response was "[w]ell, there's a difference in being high and just like you are hung over. They looked like they were just hung over from being high or drunk." Id., at 1619. In fact, the State recalled one witness, Lewis Bradley, who had seen Parker and Groover after the murder and he testified that "they seemed like they had been drinking a couple of beers or something, but they seemed like they had control of theirselves." Id., at 1632.
As counsel for the State urged at oral argument, the trial court reasonably could have concluded that there was insufficient evidence to show that Parker was intoxicated on drugs or alcohol at the time of the crimes. Tr. of Oral Arg. 34. There was testimony suggesting that Parker and his companions had been drinking or had taken some drugs at some point during the time period leading up to the murders, but there was no conclusive evidence that Parker was in fact intoxicated or that his actions were in any way affected by drugs or alcohol. Similarly, the persuasiveness of Parker's "character and background" evidence depended entirely upon the credibility of witnesses who had a definite interest in seeing that Parker was not sentenced to death. I cannot say that the trial court would be in error if he did not credit these submissions as establishing nonstatutory mitigating circumstances.
Finally, the Court attempts to explain away the trial court's failure to discuss any nonstatutory mitigating circumstances by suggesting that the judge did not discuss such circumstances because he was not required by statute to make written findings regarding them. Ante, at 317. This is a strange suggestion, particularly in light of the Court's assertion that the judge's statement that "there are no mitigating circumstances that outweigh the aggravating circumstances" means that the judge found nonstatutory mitigating circumstances but determined that they were outweighed. If that were the case, and the trial court had found nonstatutory mitigating circumstances sufficient to merit "weighing," it would be most reasonable to expect the judge to discuss those circumstances in the sentencing order, whether or not state law required written findings regarding nonstatutory mitigating circumstances. The most plausible interpretation of the trial court's findings is that the court considered the evidence presented and determined that none of it rose to the level of establishing a nonstatutory mitigating circumstance to weigh against the numerous statutory aggravating circumstances.
I cannot countenance the Court's radical departure from our prior cases and cannot agree with its imaginative reconstruction of the record in this case. Therefore, I dissent and would affirm the judgment of the Court of Appeals.

## Notes

* ↑ Apparently, the Court would agree with the Florida Supreme Court's interpretation of the trial court's order if the judge had simply said that there are "no mitigating circumstances to outweigh the aggravating circumstances." Instead of the word "to" he used the word "that" and the Court seizes upon that fact to reach its conclusion that he must have found some mitigating circumstances to exist. Ante, at 318. The Court's semantic acrobatics are not well taken. The trial judge's use of the word "that" obviously could mean either that (1) there were no mitigating circumstances at all (and by definition they could not outweigh the aggravating circumstances) or (2) there were mitigating circumstances but they were outweighed. That being so, the statement is obviously ambiguous and the Court's creative reconstruction of the record in its desperate stretch to reverse Parker's sentence is contrary to our cases as well as extremely inappropriate and ill advised.
* ↑ The Court's holding also rests upon the faulty factual assumption that the Florida Supreme Court never considered Parker's evidence of nonstatutory mitigating circumstances. In both his opening brief before that court and in his petition for rehearing, Parker extensively argued that his evidence established the existence of nonstatutory mitigating circumstances. See Brief for Appellant in No. 63,700 (Fla.Sup.Ct.), pp. 73, 77-79; Reply Brief for Appellant 23-25; Petition for Rehearing 1-5. Thus, it is preposterous to conclude that the Florida Supreme Court was unaware of this evidence or that it failed to consider it.
* ↑ This in fact was Parker's initial argument before the Florida Supreme Court. See Brief for Appellant in No. 63,700 p. 82 ("Nowhere in the sentencing order is there any indication that the court considered any non-statutory mitigating factors"). See also id., at 73, 77-79, 82-83. Therefore, not even Parker interpreted the trial court's findings in the manner the Court now suggests is the only plausible interpretation.
* ↑ The Court's statement that the State "conceded this fact in oral argument before this Court," ante, at 316, is misleading. What the State's counsel said in response to questions regarding the existence of this nonstatutory mitigating circumstance was that different defendants did receive different sentences but the State's counsel ultimately answered that "[t]he trial judge in this case-I think he took it into account and found that it was not a valid nonstatutory mitigating circumstance based on the facts and Mr. Parker's participation in the Nancy Sheppard murder." Tr. of Oral Arg. 36. The State did concede the fact that Long "got a life sentence," id., at 35, but it certainly did not concede, as the Court implies, that the nonstatutory mitigating circumstance had been established.
* ↑ It is not insignificant that in the trial court Parker argued the statutory mitigating circumstance that his capacity to appreciate the criminality of his conduct, or to conform his conduct to the requirements of the law, was substantially impaired. Fla.Stat. § 921.141(6)(f) (1985 and Supp. 1990). The basis for this alleged impairment was intoxication on drugs and alcohol. Tr. 2481-2483. Defense counsel incredibly asserted that Parker "had drunk some four cases of beer" the night of the murders and Parker's drunkenness was "why Elaine [Parker's wife] drove." Id., at 2482 (emphasis added). With respect to this statutory mitigating circumstance, the trial court found:
* ↑ Witnesses testifying as to Parker's background and character included his mother, grandmother, sister, and a cousin.
* ↑ Once it is recognized that the Florida Supreme Court's interpretation of the trial court's findings is plausible and must be deferred to, then that court's action in affirming Parker's death sentence comports with our cases, see Barclay v. Florida, 463 U.S. 939, 955, 103 S.Ct. 3418, 3427, 77 L.Ed.2d 1134 (1983), and there is no Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), problem.
* ↑ Although I would affirm the judgment of the Court of Appeals, I would do so for reasons different than those relied upon by that court.
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).
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