# Schad v. Arizona
## Concurring Opinion

    Scalia

## Dissenting Opinion

    White
United States Supreme Court
501 U.S. 624
Schad v. Arizona
No. 90-5551 Argued: Feb. 27, 1991. --- Decided: June 21, 1991
See U.S., 112 S.ct. 28.
Syllabus
After he was found with a murder victim's vehicle and other belongings, petitioner Schad was indicted for first-degree murder. At trial, the prosecutor advanced both premeditated and felony murder theories, against which Schad claimed that the circumstantial evidence proved at most that he was a thief, not a murderer. The court refused Schad's request for an instruction on theft as a lesser included offense, but charged the jury on second-degree murder. The jury convicted him of first-degree murder, and he was sentenced to death. The State Supreme Court affirmed, rejecting Schad's contention that the trial court erred in not requiring the jury to agree on a single theory of first-degree murder. The court also rejected Schad's argument that Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 required an instruction on the lesser included offense of robbery.
Held: The judgment is affirmed.
163 Ariz. 411, 788 P.2d 1162, (1989) affirmed.
Justice SOUTER delivered the opinion of the Court with respect to Part III, concluding that Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382-which held unconstitutional a state statute prohibiting lesser included offense instructions in capital cases did not entitle Schad to a jury instruction on robbery. Beck was based on the concern that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital offense might nonetheless vote for a capital conviction if the only alternative was to set him free with no punishment at all. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19, 100 S.Ct., at 2385, 2386, 2387, 2388, 2389-2390, 2392-2393, and n. 19. This concern simply is not implicated here, since the jury was given the "third option" of finding Schad guilty of a lesser included noncapital offense, second-degree murder. It would be irrational to assume that the jury chose capital murder rather than second-degree murder as its means of keeping a robber off the streets, and, thus, the trial court's choice of instructions sufficed to ensure the verdict's reliability. Pp. 645-648.
Justice SOUTER, joined by THE CHIEF JUSTICE, Justice O'CONNOR, and Justice KENNEDY, concluded in Part II that Arizona's characterization of first-degree murder as a single crime as to which a jury need not agree on one of the alternative statutory theories of premeditated or felony murder is not unconstitutional. Pp. 630-645.
(a) The relevant enquiry is not, as Schad argues, whether the Constitution requires a unanimous jury in state capital cases. Rather, the real question here is whether it was constitutionally acceptable to permit the jury to reach one verdict based on any combination of the alternative findings. P. 630-631.
(b) The long-established rule that a jury need not agree on which overt act, among several, was the means by which a crime was committed, provides a useful analogy. Nevertheless, the Due Process Clause does place limits on a State's capacity to define different states of mind as merely alternative means of committing a single offense; there is a point at which differences between those means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating between what the Constitution requires to be treated as separate offenses subject to separate jury findings. Pp. 631-637.
(c) It is impossible to lay down any single test for determining when two means are so disparate as to exemplify two inherently separate offenses. Instead, the concept of due process, with its demands for fundamental fairness and for the rationality that is an essential component of that fairness, must serve as the measurement of the level of definitional and verdict specificity permitted by the Constitution. P. 637-638.
(d) The relevant enquiry must be undertaken with a threshold presumption of legislative competence. Decisions about what facts are material and what are immaterial, or, in terms of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, what "fact[s] [are] necessary to constitute the crime," and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. There is support for such restraint in this Court's "burden-shifting" cases, which have made clear, in a slightly different context, that the States must be permitted a degree of flexibility in determining what facts are necessary to constitute a particular offense within the meaning of Winship. See, e.g., Patterson v. New York, 432 U.S. 197, 201-202, 210, 97 S.Ct. 2319, 2322-2323, 2327, 53 L.Ed.2d 281. Pp. 638-639.
(e) In translating the due process demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, courts should look both to history and widely shared state practice as guides to fundamental values. See, e.g., id., at 202, 97 S.Ct., at 2322-2323. Thus it is significant here that Arizona's equation of the mental states of premeditated and felony murder as a species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes. See, e.g., People v. Sullivan, 173 N.Y. 122, 127, 65 N.E. 989, 989-990; State v. Buckman, 237 Neb. 936, 468 N.W.2d 589. Pp.640-643.
(f) Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found. See Tison v. Arizona, 481 U.S. 137, 157-158, 107 S.Ct. 1676, 1687-1688, 95 L.Ed.2d 127. This is enough to rule out the argument that a moral disparity bars treating the two mental states as alternative means to satisfy the mental element of a single offense. Pp. 643-644.
(g) Although the foregoing considerations may not exhaust the universe of those potentially relevant, they are sufficiently persuasive that the jury's options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality. P. 645.
Justice SCALIA would reach the same result as the plurality with respect to Schad's verdict-specificity claim, but for a different reason. 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. As the plurality observes, one can conceive of novel "umbrella" crimes that could not, consistent with due process, be submitted to a jury on disparate theories. But first-degree murder, which has in its basic form existed in our legal system for centuries, does not fall into that category. Such a traditional crime, and a traditional mode of submitting it to the jury, do not need to pass this Court's "fundamental fairness" analysis; and the plurality provides no persuasive justification other than history in any event. Pp. 648-652.
SOUTER, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts I and II, in which REHNQUIST, C.J., and O'CONNOR and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
Denise I. Young, Phoenix, Ariz. for petitioner.
R. Wayne Ford, Phoenix, Ariz. for respondent.
Justice SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, and an opinion with respect to Parts I and II in which THE CHIEF JUSTICE, Justice O'CONNOR, and Justice KENNEDY join.

## 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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