# Parker v. Dugger

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## Dissenting Opinion

    White
United States Supreme Court
498 U.S. 308
Parker v. Dugger
No. 89-5961 Argued: Nov. 7, 1990. --- Decided: Jan 22, 1991
See 499 U.S. 932, 111 S.Ct. 1340.
Syllabus
A Florida jury convicted petitioner Parker of first-degree murder for the killings of Richard Padgett and Nancy Sheppard. At the advisory sentencing hearing, the jury found that sufficient aggravating circumstances existed to justify a death sentence as to both murders, but that sufficient mitigating circumstances existed to outweigh those aggravating factors, and therefore recommended that Parker be sentenced to life imprisonment on both counts. The trial judge, who has ultimate sentencing authority under state law, accepted the jury's recommendation for the Padgett murder, but overrode the recommendation for the Sheppard murder and sentenced Parker to death. The judge explained, inter alia, that he had found, based on a review of the evidence, six statutory aggravating circumstances as to the Sheppard murder and no statutory mitigating circumstances. He did not discuss evidence of, or reach any explicit conclusions concerning, nonstatutory mitigating evidence, but declared that "[t]here are no mitigating circumstances that outweigh the aggravating circumstances in" either count. Although concluding that there was insufficient evidence of two of the aggravating circumstances relied on by the trial judge, the State Supreme Court affirmed the death sentence, declaring that the trial court had found no mitigating circumstances to balance against the four properly applied aggravating factors. The court ruled that the facts suggesting the death sentence were "so clear and convincing that no reasonable person could differ," and therefore that judicial override of the jury's recommendation of life was appropriate under state law. The Federal District Court granted Parker's habeas corpus petition as to the imposition of the death penalty, ruling that the sentence was unconstitutional. The Court of Appeals reversed.
Held: The Florida Supreme Court acted arbitrarily and capriciously by failing to treat adequately Parker's nonstatutory mitigating evidence. Pp. 313-323.
(a) Although the trial judge's order imposing the death sentence does not state explicitly what effect he gave Parker's nonstatutory mitigating evidence, it must be concluded that the judge found and weighed such evidence before imposing the sentence. The record contains substantial evidence, much of it uncontroverted, favoring mitigation. Moreover, the judge declined to override the jury's recommendation of life imprisonment for the Padgett murder, indicating that he found nonstatutory mitigating circumstances in that murder. Furthermore, the judge stated that he found no mitigating circumstances "that outweigh" aggravating circumstances, indicating that nonstatutory mitigating circumstances did, in fact, exist. Pp. 313-318.
(b) Thus, the State Supreme Court erred in concluding that the trial judge found no mitigating circumstances to balance against the aggravating factors, and consequently erred in its review of Parker's sentence. Where a reviewing court in a weighing State strikes one or more of the aggravating factors on which the sentencer relies, the reviewing court may, consistent with the Constitution, reweigh the remaining evidence or conduct a harmless error analysis. Clemons v. Mississippi, 494 U.S. 738, 741, 110 S.Ct. 1441, ----, 108 L.Ed.2d 725. The State Supreme Court did not conduct an independent reweighing of the evidence, since it explicitly relied on what it took to be the trial judge's findings of no mitigating circumstances. Moreover, even if the court conducted a harmless error analysis, that analysis was flawed by the court's ignoring of the evidence of mitigating circumstances in the record. Although a federal court on habeas review must give deference to a state appellate court's resolution of an ambiguity in a state trial court's statement, Wainwright v. Goode, 464 U.S. 78, 83-85, 104 S.Ct. 378, 381-382, 78 L.Ed.2d 187, it need not do so where, as here, the appellate court's conclusion is not fairly supported by the record in the case. Pp. 318-320.
(c) The State Supreme Court's affirmance of Parker's death sentence based upon nonexistent findings was invalid because it deprived Parker of the individualized treatment to which he is entitled under the Constitution. Clemons, supra, 494 U.S., at 752, 110 S.Ct., at ----. Pp. 321-322.
876 F.2d 1470 (1989), reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which MARSHALL, STEVENS, BLACKMUN, and SOUTER, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined, post, p. ---.
Robert J. Link, Jacksonville, Fla., for petitioner.
Carolyn M. Snurkowski, Tallahassee, Fla., for respondents.
Justice O'CONNOR 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).
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