Subject:  SCHAD v. ARIZONA, Syllabus



 
    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


SCHAD v. ARIZONA


certiorari to the supreme court of arizona

No. 90-5551.  Argued February 27, 1991 -- Decided June 21, 1991

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 firstdegree murder.  The court also rejected
Schad's argument that Beck v. Alabama, 447 U. S. 625, required an
instruction on the lesser included offense of robbery.

Held: The judgment is affirmed.

163 Ariz. 411, 788 P. 2d 1162, affirmed.

    Justice Souter delivered the opinion of the Court with respect to Part
III, concluding that Beck v. Alabama, 447 U. S. 625 -- 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.  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. 19-22.

    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. 4-19.

    (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.  Pp. 4-5.

    (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. 5-11.

    (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.
11.

    (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, 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.  Pp. 11-13.

    (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.  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, --- N. W. 2d ---.  Pp. 13-17.

    (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.  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.
17-18.

    (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. 19.


    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. 1-5.

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.

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Subject: 90-5551 -- OPINION, SCHAD v. ARIZONA

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-5551



EDWARD HAROLD SCHAD, Jr., PETITIONER
v. ARIZONA


on writ of certiorari to the supreme court of arizona

[June 21, 1991]



    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.
    This case presents two questions: whether a first-degree murder
conviction under jury instructions that did not require agreement on
whether the defendant was guilty of premeditated murder or felony murder is
unconstitutional; and whether the principle recognized in Beck v. Alabama,
447 U. S. 625 (1980), entitles a defendant to instructions on all offenses
that are lesser than and included within a capital offense as charged.  We
answer no to each.
I
    On August 9, 1978, a highway worker discovered the badly decomposed
body of 74-year-old Lorimer Grove in the underbrush off U. S. Highway 89,
about nine miles south of Prescott, Arizona.  There was a rope around his
neck, and a coroner determined that he had been strangled to death.  The
victim had left his home in Bisbee, Arizona, eight days earlier, driving
his new Cadillac and towing a camper.
    On September 3, 1978, petitioner, driving Grove's Cadillac, was stopped
for speeding by the New York State Police.  He told the officers that he
was transporting the car for an elderly friend named Larry Grove.  Later
that month, petitioner was arrested in Salt Lake City, Utah, for a parole
vio lation and possession of a stolen vehicle.  A search of the Cadillac,
which petitioner was still driving, revealed personal belongings of
Grove's, and petitioner's wallet contained two of Grove's credit cards,
which petitioner had begun using on August 2, 1978.  Other items belonging
to Grove were discovered in a rental car which had been found abandoned off
Highway 89 on August 3, 1978; petitioner had rented the car the previous
December and never returned it.  While in custody in Salt Lake City,
petitioner told a visitor that he would " `deny being in any area of
Arizona or the State of Arizona, particularly Tempe, Arizona and Prescott,
Arizona.' "  163 Ariz. 411, 414, 788 P. 2d 1162, 1164 (1989).
    A Yavapai County, Arizona, grand jury indicted petitioner on one count
of first-degree murder, and petitioner was extradited to stand trial.  The
Arizona statute applicable to petitioner's case defined first-degree murder
as "murder which is . . . wilful, deliberate or premeditated . . . or which
is committed . . . in the perpetration of, or attempt to perpetrate . . .
robbery."  Ariz. Rev. Stat. Ann. MDRV 13-452 (Supp. 1973). {1}  Petitioner
was convicted and sentenced to death, but his conviction was set aside on
collateral review.  142 Ariz. 619, 691 P. 2d 710 (1984).
    At petitioner's retrial, the prosecutor advanced theories of both
premeditated murder and felony murder, against which petitioner claimed
that the circumstantial evidence proved at most that he was a thief, not a
murderer.  The court instructed the jury that "[f]irst degree murder is
murder which is the result of premeditation. . . .  Murder which is
committed in the attempt to commit robbery is also first degree murder."
App. 26.  The court also instructed that "[a]ll 12 of you must agree on a
verdict.  All 12 of you must agree whether the verdict is guilty or not
guilty."  Id., at 27.
    The defense requested a jury instruction on theft as a lesser included
offense.  The court refused, but did instruct the jurors on the offense of
second-degree murder, and gave them three forms for reporting a verdict:
guilty of firstdegree murder; guilty of second-degree murder; and not
guilty.  The jury convicted petitioner of first-degree murder, and, after a
further hearing, the judge sentenced petitioner to death.
    The Arizona Supreme Court affirmed.  163 Ariz. 411, 788 P. 2d 1162
(1989).  The court rejected petitioner's contention that the trial court
erred in not requiring the jury to agree on a single theory of first-degree
murder, explaining:

" `In Arizona, first degree murder is only one crime regardless whether it
occurs as a premeditated murder or a felony murder.  Although a defendant
is entitled to a unanimous jury verdict on whether the criminal act charged
has been committed, the defendant is not entitled to a unanimous verdict on
the precise manner in which the act was committed."  Id., at 417; 788 P.
2d, at 1168 (quoting State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624,
627 (1982)) (citations omitted).


    The court also rejected petitioner's argument that Beck v. Alabama, 447
U. S. 625 (1980), required an instruction on the lesser included offense of
robbery.  163 Ariz., at 416-417, 788 P. 2d, at 1167-1168.
    We granted certiorari.  498 U. S. --- (1990).
II
    Petitioner's first contention is that his conviction under instructions
that did not require the jury to agree on one of the alternative theories
of premeditated and felony murder is unconstitutional. {2}  He urges us to
decide this case by holding that the Sixth, Eighth, and Fourteenth
Amendments require a unanimous jury in state capital cases, as distinct
from those where lesser penalties are imposed.  See Johnson v. Louisiana,
406 U. S. 356 (1972); Apodaca v. Oregon, 406 U. S. 404 (1972).  We decline
to do so, however, because the suggested reasoning would beg the question
raised.  Even assuming a requirement of jury unanimity arguendo, that
assumption would fail to address the issue of what the jury must be
unanimous about.  Petitioner's jury was unanimous in deciding that the
State had proved what, under state law, it had to prove: that petitioner
murdered either with premeditation or in the course of committing a
robbery.  The question still remains whether it was constitutionally
acceptable to permit the jurors to reach one verdict based on any
combination of the alternative findings.  If it was, then the jury was
unanimous in reaching the verdict, and petitioner's proposed unanimity rule
would not help him.  If it was not, and the jurors may not combine findings
of premeditated and felony murder, then petitioner's conviction will fall
even without his proposed rule, because the instructions allowed for the
forbidden combination.
    In other words, petitioner's real challenge is to Arizona's
characterization of first-degree murder as a single crime as to which a
verdict need not be limited to any one statutory alternative, as against
which he argues that premeditated murder and felony murder are separate
crimes as to which the jury must return separate verdicts.  The issue in
this case, then, is one of the permissible limits in defining criminal
conduct, as reflected in the instructions to jurors applying the
definitions, not one of jury unanimity.
A
    A way of framing the issue is suggested by analogy.  Our cases reflect
a long-established rule of the criminal law that an indictment need not
specify which overt act, among several named, was the means by which a
crime was committed.  In Andersen v. United States, 170 U. S. 481 (1898),
for example, we sustained a murder conviction against the challenge that
the indictment on which the verdict was returned was duplicitous in
charging that death occurred through both shooting and drowning.  In
holding that "the Government was not required to make the charge in the
alternative," id., at 504, we explained that it was immaterial whether
death was caused by one means or the other.  Cf. Borum v. United States,
284 U. S. 596 (1932) (upholding the murder conviction of three codefendants
under a count that failed to specify which of the three did the actual
killing); St. Clair v. United States, 154 U. S. 134, 145 (1894).  This
fundamental propo sition is embodied in Federal Rule of Criminal Procedure
7(c)(1), which provides that "[i]t may be alleged in a single count that
the means by which the defendant committed the offense are unknown or that
the defendant committed it by one or more specified means."
    We have never suggested that in returning general verdicts in such
cases the jurors should be required to agree upon a single means of
commission, any more than the indictments were required to specify one
alone.  In these cases, as in litigation generally, "different jurors may
be persuaded by different pieces of evidence, even when they agree upon the
bottom line.  Plainly there is no general requirement that the jury reach
agreement on the preliminary factual issues which underlie the verdict."
McKoy v. North Carolina, 494 U. S. 433, 449 (1990) (Blackmun, J.,
concurring) (footnotes omitted).
    The alternatives in the cases cited went, of course, to possibilities
for proving the requisite actus reus, while the pres ent case involves a
general verdict predicated on the possibility of combining findings of what
can best be described as alternative mental states, the one being
premeditation, the other the intent required for murder combined with the
commission of an independently culpable felony.  See State v. Serna, 69
Ariz. 181, 188, 211 P. 2d 455, 459 (1949) (in Arizona, the attempt to
commit a robbery is "the legal equivalent of . . . deliberation,
premeditation, and design"). {3}  We see no reason, however, why the rule
that the jury need not agree as to mere means of satisfying the actus reus
element of an offense should not apply equally to alternative means of
satisfying the element of mens rea.
    That is not to say, however, that the Due Process Clause places no
limits on a State's capacity to define different courses of conduct, or
states of mind, as merely alternative means of committing a single offense,
thereby permitting a defendant's conviction without jury agreement as to
which course or state actually occurred.  The axiomatic requirement of due
process that a statute may not forbid conduct in terms so vague that people
of common intelligence would be relegated to differing guesses about its
meaning, see Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (citing
Connally v. General Construction Co., 269 U. S. 385, 391 (1926)), carries
the practical consequence that a defendant charged under a valid statute
will be in a position to understand with some specificity the legal basis
of the charge against him.  Thus it is an assumption of our system of
criminal justice " `so rooted in the traditions and conscience of our
people as to be ranked as fundamental,' " Speiser v. Randall, 357 U. S.
513, 523 (1958) (quoting Snyder v. Massachusetts, 291 U. S. 97, 105
(1934)), that no person may be punished criminally save upon proof of some
specific illegal conduct.  Just as the requisite specificity of the charge
may not be compromised by the joining of separate offenses, see United
States v. UCO Oil Co., 546 F. 2d 833 (CA9 1976), cert. denied, 430 U. S.
966 (1977), nothing in our history suggests that the Due Process Clause
would permit a State to convict anyone under a charge of "Crime" so generic
that any combination of jury findings of embezzlement, reckless driving,
murder, burglary, tax evasion, or littering, for example, would suffice for
conviction. {4}
    To say, however, that there are limits on a State's authority to decide
what facts are indispensable to proof of a given offense, is simply to
raise the problem of describing the point at which differences between
means become so important that they may not reasonably be viewed as
alternatives to a common end, but must be treated as differentiating what
the Constitution requires to be treated as separate offenses.  See
generally Note, 91 Harv. L. Rev. 499, 501-502 (1977).  Although we have
never before attempted to define what constitutes an immaterial difference
as to mere means and what constitutes a material difference requiring
separate theories of crime to be treated as separate offenses subject to
separate jury findings, there is a body of law in the federal circuits,
deriving primarily from the decision of the Fifth Circuit in United States
v. Gipson, 553 F. 2d 453 (1977) (Wisdom, J.), that addresses this problem.
    The defendant in Gipson was charged with violating 18 U. S. C. MDRV
2313, which prohibited knowingly "receiv[ing], conceal[ing], stor[ing],
barter[ing], sell[ing] or dispos[ing] of" any stolen vehicle or aircraft
moving in interstate commerce, and was convicted after the trial judge
charged the jury that it need not agree on which of the enumerated acts the
defendant had committed.  The Fifth Circuit reversed, reasoning that the
defendant's right to "jury consensus as to [his] course of action"  {5} was
violated by the joinder in a single count of "two distinct conceptual
groupings," receiving, concealing, and storing forming the first grouping
(referred to by the court as "housing"), and bartering, selling, and
disposing ("marketing") constituting the second.  Id., at 456-459.  In that
court's view, the acts within a conceptual grouping are sufficiently
similar to obviate the need for jurors to agree about which of them was
committed, whereas the acts in distinct conceptual groupings are so
unrelated that the jury must decide separately as to each grouping.  A
number of lower courts have adopted the standard of "distinct conceptual
groupings" as the appropriate test.  E. g., United States v. Peterson, 768
F. 2d 64 (CA2) (Friendly, J.), cert. denied, 474 U. S. 923 (1985); United
States v. Duncan, 850 F. 2d 1104, 1113 (CA6 1988), cert. denied sub nom.
Downing v. United States, 498 U. S. --- (1990); State v. Baldwin, 101 Wis.
2d 441, 449-450, 304 N. W. 2d 742, 747-749 (1981).
    We are not persuaded that the Gipson approach really answers the
question, however.  Although the classification of alternatives into
"distinct conceptual groupings" is a way to express a judgment about the
limits of permissible alter natives, the notion is too indeterminate to
provide concrete guidance to courts faced with verdict specificity
questions.  See, e. g., Rice v. State, 311 Md. 116, 133, 532 A. 2d 1357,
1365 (1987) (criticizing Gipson criteria as "not entirely clear" and as
"provid[ing] little guidance"); Trubitt, Patchwork Verdicts,
Different-Jurors Verdicts, and American Jury Theory: Whether Verdicts Are
Invalidated by Juror Disagreement on Issues, 36 Okla. L. Rev. 473, 548-549
(1983) (same).  This is so because conceptual groupings may be identified
at various levels of generality, and we have no a priori standard to
determine what level of generality is appropriate.  Indeed, as one judge
has noted, even on the facts of Gipson itself, "[o]ther conceptual
groupings of the six acts are possible.  [One might] put all six acts into
one conceptual group, namely trafficking in stolen vehicles."  Manson v.
State, 101 Wis. 2d 413, 438, 304 N. W. 2d 729, 741 (1981) (Abrahamson, J.,
concurring); accord Trubitt, supra, at 548-549 ("[I]t is difficult to see
how a court could determine that `housing' and `marketing' are ultimate
acts in some metaphysical or constitutional sense, and thus prohibit the
legislature from including them in the single offense of trafficking").  In
short, the notion of "distinct conceptual groupings" is simply too
conclusory to serve as a real test.
    The dissent would avoid the indeterminacy of the Gipson approach by
adopting an inflexible rule of maximum verdict specificity.  In the
dissent's view, whenever a statute lists alternative means of committing a
crime, "the jury [must] indicate on which of the alternatives it has based
the defendant's guilt," post, at 5, even where there is no indication that
the statute seeks to create separate crimes.  This approach rests on the
erroneous assumption that any statutory alternatives are ipso facto
independent elements defining independent crimes under state law, and
therefore subject to the axiomatic principle that the prosecution must
prove independently every element of the crime.  See post, at 5-7 (citing
In re Winship, 397 U. S. 358 (1970), and Sandstrom v. Montana, 442 U. S.
510 (1979)).  In point of fact, as the statute at issue in Gipson
demonstrates, legislatures frequently enumerate alternative means of
committing a crime without intending to define separate elements or
separate crimes. {6}  The question whether statutory alternatives
constitute independent elements of the offense therefore does not, as the
dissent would have it, call for a mere tautology; rather, it is a
substantial question of statutory construction.  See, e. g., United States
v. UCO Oil Co., 546 F. 2d, at 835-838.
    In cases, like this one, involving state criminal statutes, the
dissent's "statutory alternatives" test runs afoul of the fundamental
principle that we are not free to substitute our our own interpretations of
state statutes for those of a State's courts.  If a State's courts have
determined that certain statutory alternatives are mere means of committing
a single offense, rather than independent elements of the crime, we simply
are not at liberty to ignore that determination and conclude that the
alternatives are, in fact, independent elements under state law.  See
Mullaney v. Wilbur, 421 U. S. 684, 690-691 (1975) (declining to reexamine
the Maine Supreme Judicial Court's decision that, under Maine law, all
intentional or criminally reckless killings are aspects of the single crime
of felonious homicide); Murdock v. City of Memphis, 20 Wall. 590 (1875).
In the present case, for example, by determining that a general verdict as
to first-degree murder is permissible under Arizona law, the Arizona
Supreme Court has effectively decided that, under state law, premeditation
and the commission of a felony are not independent elements of the crime,
but rather are mere means of satisfying a single mens rea element.  The
issue in this case therefore is not whether "the State must be held to its
choice," post, at 6-7, for the Arizona Supreme Court has authoritatively
determined that the State has chosen not to treat premeditation and the
commission of a felony as independent elements of the crime, but rather
whether Arizona's choice is unconstitutional.
B
    It is tempting, of course, to follow the example of Gipson to the
extent of searching for some single criterion that will serve to answer the
question facing us.  We are convinced, however, of the impracticability of
trying to derive any single test for the level of definitional and verdict
specificity permitted by the Constitution, and we think that instead of
such a test our sense of appropriate specificity is a distillate of the
concept of due process with its demands for fundamental fairness, see, e.
g., Dowling v. United States, 493 U. S. 342, 352-353 (1990), and for the
rationality that is an essential component of that fairness.  In
translating these demands for fairness and rationality into concrete
judgments about the adequacy of legislative determinations, we look both to
history and wide practice as guides to fundamental values, as well as to
narrower analytical methods of testing the moral and practical equivalence
of the different mental states that may satisfy the mens rea element of a
single offense.  The enquiry is undertaken with a threshold presumption of
legislative competence to determine the appropriate relationship between
means and ends in defining the elements of a crime.
1
    Judicial restraint necessarily follows from a recognition of the
impossibility of determining, as an a priori matter, whether a given
combination of facts is consistent with there being only one offense.
Decisions about what facts are material and what are immaterial, or, in
terms of Winship, 397 U. S., at 364, 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.  Respect for this
legislative competence counsels restraint against judicial second-guessing,
cf. Rostker v. Goldberg, 453 U. S. 57, 65 (1981) ("lack of competence on
the part of the courts" relative to the legislature so counsels), which is
particularly appropriate in cases, like this one, that call state
definitions into question.  "It goes without saying that preventing and
dealing with crime is much more the business of the States than it is of
the Federal Government, Irvine v. California, 347 U. S. 128, 134 (1954)
(plurality opinion), and that we should not lightly construe the
Constitution so as to intrude upon the administration of justice by the
individual States."  Patterson v. New York, 432 U. S. 197, 201 (1977).
    There is support for such restraint in our "burden-shifting" cases,
which have made clear, in a slightly different context, that the States
must be permitted a degree of flexibility in defining the "fact[s]
necessary to constitute the crime" under Winship.  Each of those cases
arose because a State defined an offense in such a way as to exclude some
particular fact from those to be proved beyond a reasonable doubt, either
by placing the burden on defendants to prove a mitigating fact, see
Patterson, supra (extreme emotional disturbance); Martin v. Ohio, 480 U. S.
228 (1987) (self-defense); see also Mullaney, supra (heat of passion or
sudden provocation), or by allowing the prosecution to prove an aggravating
fact by some standard less than that of reasonable doubt, McMillan v.
Pennsylvania, 477 U. S. 79 (1986) (possession of a firearm).  In each case,
the defendant argued that the excluded fact was inherently "a fact
necessary to constitute the offense" that required proof beyond a
reasonable doubt under Winship, even though the fact was not formally an
element of the offense with which he was charged.  See, e. g., 477 U. S.,
at 90.
    The issue presented here is similar, for under Arizona law neither
premeditation nor the commission of a felony is formally an independent
element of first-degree murder; they are treated as mere means of
satisfying a mens rea element of high culpability.  The essence of
petitioner's argument is that, despite this unitary definition of the
offense, each of these means must be treated as an independent element as
to which the jury must agree, because premeditated murder and felony murder
are inherently separate offenses.  Both here and in the burden-shifting
cases, in other words, a defendant argues that the inherent nature of the
offense charged requires the State to prove as an element of the offense
some fact that is not an element under the legislative definition.
    In the burden-shifting cases, as here, we have faced the difficulty of
deciding, as an abstract matter, what elements an offense must comprise.
Recognizing "[o]ur inability to lay down any `bright-line' test," McMillan,
supra, at 91, we have "stressed that . . . the state legislature's
definition of the elements of the offense is usually dispositive."  Id., at
85; see also Patterson, supra, at 201-202.  We think that similar restraint
is appropriate here, although we recognize that, as in the burden-shifting
cases, "there are obviously constitutional limits beyond which the States
may not go."  Patterson, supra, at 210; see also McMillan, supra, at 86.
2
    The use here of due process as a measurement of the sense of
appropriate specificity assumes the importance of history and widely shared
practice as concrete indicators of what fundamental fairness and
rationality require.  In turning to these sources we again follow the
example set in the burdenshifting cases, where we have often found it
useful to refer both to history and to the current practice of other States
in determining whether a State has exceeded its discretion in defining
offenses.  See Patterson, supra, at 202, 207-209 nn. 10-11; see also
Martin, supra, at 235-236; Mullaney, supra, at 692-696.  Where a State's
particular way of defining a crime has a long history, or is in widespread
use, it is unlikely that a defendant will be able to demonstrate that the
State has shifted the burden of proof as to what is an inherent element of
the offense, or has defined as a single crime multiple offenses that are
inherently separate.  Conversely, a freakish definition of the elements of
a crime that finds no analogue in history  {7} or in the criminal law of
other jurisdictions will lighten the defendant's burden.
    Thus it is significant that Arizona's equation of the mental states of
premeditated murder and felony murder as species of the blameworthy state
of mind required to prove a single offense of first-degree murder finds
substantial historical and contemporary echoes.  At common law, murder was
defined as the unlawful killing of another human being with "malice
aforethought."  The intent to kill and the intent to commit a felony were
alternative aspects of the single concept of "malice aforethought."  See 3
J. Stephen, History of the Criminal Law of England 21-22 (1883).  Although
American jurisdictions have modified the common law by legislation
classifying murder by degrees, the resulting statutes have in most cases
retained premeditated murder and some form of felony murder (invariably
including murder committed in perpetrating or attempting to perpetrate a
robbery) as alternative means of satisfying the mental state that
first-degree murder presupposes.  See 2 W. LaFave & A. Scott, Substantive
Criminal Law MDRV 7.5, pp. 210-211, and nn. 21, 23, 24 (1986); ALI, Model
Penal Code MDRV 210.2, p. 32, and n. 78 (1980).  Indeed, the language of
the Arizona first-degree murder statute applicable here is identical in all
relevant respects to the language of the first statute defining murder by
differences of degree, passed by the Pennsylvania Legislature in 1794. {8}
    A series of state court decisions, beginning with the leading case of
People v. Sullivan, 173 N. Y. 122, 65 N. E. 989 (1903), have agreed that
"it was not necessary that all the jurors should agree in the determination
that there was a deliberate and premeditated design to take the life of the
deceased, or in the conclusion that the defendant was at the time engaged
in the commission of a felony, or an attempt to commit one; it was
sufficient that each juror was convinced beyond a reasonable doubt that the
defendant had committed the crime of murder in the first degree as that
offense is defined by the statute."  Id., at 127, 65 N. E., at 989-990.
See People v. Milan, 9 Cal. 3d 185, 507 P. 2d 956 (1973); People v. Travis,
170 Ill. App. 3d 873, 525 N. E. 2d 1137 (1988), cert. denied, 489 U. S.
1024 (1989); State v. Fuhrmann, 257 N. W. 2d 619 (Iowa 1977); State v.
Wilson, 220 Kan. 341, 552 P. 2d 931 (1976); Commonwealth v. Devlin, 335
Mass. 555, 141 N. E. 2d 269 (1957); People v. Embree, 70 Mich. App. 382,
246 N. W. 2d 6 (1976); State v. Buckman, 237 Neb. 936, --- N. W. 2d ---
(1991); James v. State, 637 P. 2d 862 (Okla. Crim. 1981); State v. Tillman,
750 P. 2d 546 (Utah 1987); see also Brown v. State, 473 So. 2d 1260 (Fla.),
cert. denied, 474 U. S. 1038 (1985).  Although the state courts have not
been unanimous in this respect, see State v. Murray, 308 Ore. 496, 782 P.
2d 157 (1989), there is sufficiently widespread acceptance of the two
mental states as alternative means of satisfying the mens rea element of
the single crime of first-degree murder to persuade us that Arizona has not
departed from the norm.
    Such historical and contemporary acceptance of Arizona's definition of
the offense and verdict practice is a strong in dication that they do not "
`offen[d] some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental,' " Patterson, 432
U. S., at 202 (quoting Speiser, 357 U. S., at 523), for we recognize the
high probability that legal definitions, and the practices comporting with
them, are unlikely to endure for long, or to retain wide acceptance, if
they are at odds with notions of fairness and rationality sufficiently
fundamental to be comprehended in due process.  Cf. Jackman v. Rosenbaum
Co., 260 U. S. 22, 31 (1922) (Holmes, J.); Snyder, 291 U. S., at 111.
    This is not to say that either history or current practice is
dispositive.  In McMillan, for example, even though many States had made
the fact at issue (possession of a weapon) an element of various aggravated
offenses, we were unwilling to conclude that Pennsylvania's decision to
treat it as an aggravating circumstance provable at sentencing by a mere
preponderance of the evidence deviated so far from the constitutional norm
as to violate the Due Process Clause.  "That Pennsylvania's particular
approach has been adopted in few other States," we observed, "does not
render Pennsylvania's choice unconstitutional."  477 U. S., at 90; see also
Martin, 480 U. S., at 235-236 (relying on history, but not current
practice); Patterson, supra, at 211.  Conversely, " `neither the antiquity
of a practice nor the fact of steadfast legislative and judicial adherence
to it through the centuries insulates it from constitutional attack.' "
Pacific Mutual Life Ins. Co. v. Haslip, 499 U. S. 1, --- (1991) (slip op.
at 15) (quoting Williams v. Illinois, 399 U. S. 235, 239 (1970)).  In fine,
history and current practice are significant indicators of what we as a
people regard as fundamentally fair and rational ways of defining criminal
offenses, which are nevertheless always open to critical examination.
3
    It is, as we have said, impossible to lay down any single analytical
model for determining when two means are so disparate as to exemplify two
inherently separate offenses.  In the case before us, however, any scrutiny
of the two possibilities for proving the mens rea of first degree murder
may appropriately take account of the function that differences of mental
state perform in defining the relative seriousness of otherwise similar or
identical criminal acts.  See generally ALI, Model Penal Code MDRV 2.02(2)
(1985) (defining differing mental states).  If, then, two mental states are
supposed to be equivalent means to satisfy the mens rea element of a single
offense, they must reasonably reflect notions of equivalent blameworthiness
or culpability, whereas a difference in their perceived degrees of
culpability would be a reason to conclude that they identified different
offenses altogether.  Petitioner has made out no case for such moral
disparity in this instance.
    The proper critical question is not whether premeditated murder is
necessarily the moral equivalent of felony murder in all possible instances
of the latter.  Our cases have rec ognized that not all felony murders are
of identical culpability, compare Tison v. Arizona, 481 U. S. 137 (1987),
with Enmund v. Florida, 458 U. S. 782 (1982), and the same point is
suggested by examining state murder statutes, which frequently diverge as
to what felonies may be the predicate of a felony murder conviction.
Compare, e. g., Tenn. Code Ann. MDRV 39-13-202 (Supp. 1990) (theft as
predicate of first-degree felony-murder) with, e. g., Ariz. Rev. Stat. Ann.
MDRV 13-1105.A (1989) (theft not such a predicate).
    The question, rather, is whether felony murder may ever be treated as
the equivalent of murder by deliberation, and in particular whether robbery
murder as charged in this case may be treated as thus equivalent.  This is
in fact the very question we considered only three Terms ago in the context
of our capital sentencing jurisprudence in Tison, supra.  There we held
that "the reckless disregard for human life implicit in knowingly engaging
in criminal activities known to carry a grave risk of death represents
[such] a highly culpable mental state . . . that [it] may be taken into
account in making a capital sentencing judgment when that conduct causes
its natural, though not inevitable, lethal result."  Id., at 157-158.  We
accepted the proposition that this disregard occurs, for example, when a
robber "shoots someone in the course of the robbery, utterly indifferent to
the fact that the desire to rob may have the unintended consequence of
killing the victim as well as taking the victim's property."  Id., at 157.
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, which is enough
to rule out the argument that this moral disparity bars treating them as
alternative means to satisfy the mental element of a single offense. {9}
    We would not warrant that these considerations exhaust the universe of
those potentially relevant to judgments about the legitimacy of defining
certain facts as mere means to the commission of one offense.  But they do
suffice to persuade us that the jury's options in this case did not fall
beyond the constitutional bounds of fundamental fairness and rationality.
We do not, of course, suggest that jury instructions requiring increased
verdict specificity are not desirable, and in fact the Supreme Court of
Arizona has itself recognized that separate verdict forms are useful in
cases submitted to a jury on alternative theories of premeditated and
felony murder.  State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817
(1989).  We hold only that the Constitution did not command such a practice
on the facts of this case.
III
    Petitioner's second contention is that under Beck v. Alabama, 447 U. S.
625 (1980), he was entitled to a jury instruction on the offense of
robbery, which he characterizes as a lesser included offense of robbery
murder. {10}  Beck held unconstitutional an Alabama statute that prohibited
lesser included offense instructions in capital cases.  Unlike the jury in
Beck, the jury here was given the option of finding petitioner guilty of a
lesser included noncapital offense, seconddegree murder.  While petitioner
cannot, therefore, succeed under the strict holding of Beck, he contends
that the due process principles underlying Beck require that the jury in a
capital case be instructed on every lesser included noncapital offense
supported by the evidence, and that robbery was such an offense in this
case.
    Petitioner misapprehends the conceptual underpinnings of Beck.  Our
fundamental concern in Beck was that a jury convinced that the defendant
had committed some violent crime but not convinced that he was guilty of a
capital crime might nonetheless vote for a capital conviction if the only
alternative was to set the defendant free with no punishment at all.  We
explained:

"[O]n the one hand, the unavailability of the third option of convicting on
a lesser included offense may encourage the jury to convict for an
impermissible reason -- its belief that the defendant is guilty of some
serious crime and should be punished.  On the other hand, the apparently
mandatory nature of the death penalty [in Alabama] may encourage it to
acquit for an equally impermissible reason -- that, whatever his crime, the
defendant does not deserve death. . . .  [T]hese two extraneous factors . .
. . introduce a level of uncertainty and unreliability into the factfinding
process that cannot be tolerated in a capital case."  Id., at 642 (footnote
omitted).


We repeatedly stressed the all-or-nothing nature of the decision with which
the jury was presented.  See id., at 629, 630, 632, 634, 637, 642-643, and
n. 19.  As we later explained in Spaziano v. Florida, 468 U. S. 447, 455
(1984), "[t]he absence of a lesser included offense instruction increases
the risk that the jury will convict . . . simply to avoid setting the
defendant free. . . .  The goal of the Beck rule, in other words, is to
eliminate the distortion of the factfinding process that is created when
the jury is forced into an all-or-nothing choice between capital murder and
innocence."  See also Hopper v. Evans, 456 U. S. 605, 609 (1982).  This
central concern of Beck simply is not implicated in the present case, for
petitioner's jury was not faced with an all-or-nothing choice between the
offense of conviction (capital murder) and innocence.
    Petitioner makes much of the fact that the theory of his defense at
trial was not that he murdered Mr. Grove without premeditation (which would
have supported a second-degree murder conviction), but that, despite his
possession of some of Mr. Grove's property, someone else had committed the
murder (which would have supported a theft or robbery conviction, but not
second-degree murder).  Petitioner contends that if the jurors had accepted
his theory, they would have thought him guilty of robbery and innocent of
murder, but would have been unable to return a verdict that expressed that
view.  Because Beck was based on this Court's concern about "rules that
diminish the reliability of the guilt determination" in capital cases, 447
U. S., at 638, the argument runs, the jurors should have been given the
opportunity "to return a verdict in conformity with their reasonable view
of the evidence."  Reply Brief for Petitioner 8.  The dissent makes a
similar argument.  Post, at 9.
    The argument is unavailing, because the fact that the jury's "third
option" was second-degree murder rather than robbery does not diminish the
reliability of the jury's capital murder verdict.  To accept the contention
advanced by petitioner and the dissent, we would have to assume that a jury
unconvinced that petitioner was guilty of either capital or second-degree
murder, but loath to acquit him completely (because it was convinced he was
guilty of robbery), might choose capital murder rather than second-degree
murder as its means of keeping him off the streets.  Because we can see no
basis to assume such irrationality, we are satisfied that the second-degree
murder instruction in this case sufficed to ensure the verdict's
reliability.
    That is not to suggest that Beck would be satisfied by instructing the
jury on just any lesser included offense, even one without any support in
the evidence.  Cf. Roberts v. Louisiana, 428 U. S. 325, 334-335 (1976)
(plurality opinion).  In the present case, however, petitioner concedes
that the evidence would have supported a second-degree murder conviction,
Brief for Petitioner 18-19, and that is adequate to indicate that the
verdict of capital murder represented no impermissible choice.
*  *  *
    The judgment of the Supreme Court of Arizona is

Affirmed.


 
 
 
 
 


------------------------------------------------------------------------------
1
    The full statute provided:

"A murder which is perpetrated by means of poison or lying in wait, torture
or by any other kind of wilful, deliberate or premeditated killing, or
which is committed in avoiding or preventing lawful arrest or effecting an
escape from legal custody, or in the perpetration of, or attempt to
perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping,
or mayhem, or sexual molestation of a child under the age of thirteen
years, is murder of the first degree.  All other kinds of murder are of the
second degree."
    The statute has since been revised, but both premeditated murder and
murder in the course of a robbery still constitute first degree murder.
See Ariz. Rev. Stat. Ann. MDRV 13-1105.A (1989).

2
    Respondent contends that petitioner waived this contention by failing
to raise it in the lower Arizona courts.  Brief for Respondent 8-10.  The
Arizona Supreme Court, however, addressed the contention on the merits, 163
Ariz. 411, 417, 788 P. 2d 1162, 1168 (1989), thereby preserving the issue
for our review.  See Orr v. Orr, 440 U. S. 268, 274-275 (1979).

3
    See also Wechsler, A Rationale of the Law of Homicide: I, 37 Colum. L.
Rev. 701, 702-703 (1937); Perkins, A Rationale of Mens Rea, 52 Harv. L.
Rev. 905, 926 (1939).

4
    Although our vagueness cases support the notion that a requirement of
proof of specific illegal conduct is fundamental to our system of criminal
justice, the principle is not dependent upon or limited by concerns about
vagueness.  A charge allowing a jury to combine findings of embezzlement
and murder would raise identical problems regardless of how specifically
embezzlement and murder were defined.

5
    The court identified this right as a concomitant of the federal
criminal defendant's Sixth Amendment right to a unanimous verdict, and
subsequent courts following Gipson have adopted that characterization.  E.
g., United States v. Beros, 833 F. 2d 455 (CA3 1987).  For the reasons
given earlier, we think the right is more accurately characterized as a due
process right than as one under the Sixth Amendment.  Although this
difference in characterization is important in some respects (chiefly,
because a state criminal defendant, at least in noncapital cases, has no
federal right to a unanimous jury verdict, see Johnson v. Louisiana, 406 U.
S. 356 (1972); Apodaca v. Oregon, 406 U. S. 404 (1972)), it is immaterial
to the problem of how to go about deciding what level of verdict
specificity is constitutionally necessary.

6
    Because statutes frequently enumerate alternatives that clearly are
mere means of satisfying a single element of an offense, adoption of the
dissent's approach of requiring a specific verdict as to every alternative
would produce absurd results.  For example, the Arizona first-degree murder
statute at issue here prohibited, inter alia, "wilful, deliberate or
premeditated killing."  Ariz. Rev. Stat. Ann. MDRV 13-452 (Supp. 1973)
(emphasis added).  Under the dissent's approach, juries in prosecutions
brought under the statute presumably should have been required to deliver
specific verdicts as to each of the three: wilfullness, deliberation, and
premeditation.

7
    We note, however, the perhaps obvious proposition that history will be
less useful as a yardstick in cases dealing with modern statutory offenses
lacking clear common law roots than it is in cases, like this one, that
deal with crimes that existed at common law.

8
    The Pennsylvania statute provided:

"[A]ll murder, which shall be perpetrated by means of poison, or by lying
in wait, or by any other kind of willful, deliberate and premeditated
killing, or which shall be committed in the perpetration, or attempt to
perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of
the first degree; and all other kinds of murder shall be deemed murder in
the second degree."  1794 Pa. Laws, ch. 1766, MDRV 2.

9
    The dissent's focus on the "risks of different punishment," post, at
7-8, and n. 4, for premeditated and felony murder, ignores the fact that
the Arizona sentencing statute applicable to petitioner, Ariz. Rev. Stat.
Ann. MDRV 13-453 (Supp. 1973), authorized the same maximum penalty (death)
for both means of committing first-degree murder.  See McMillan v.
Pennsylvania, 477 U. S. 79, 87-88 (1986) (relying on fact that under
Pennsylvania law possession of a weapon "neither alters the maximum penalty
for the crime committed nor creates a separate offense calling for a
separate penalty").  Moreover, the dissent's concern that a general verdict
does not provide the sentencing judge with sufficient information about the
jury's findings to provide a proper premise for the decision whether or not
to impose the death penalty, post, at 7-8, goes only to the permissibility
of a death sentence imposed in such circumstances, not to the issue
currently before us, which is the permissibility of the conviction.  To
make the point by example, even if the trial judge in this case had
satisfied any possible specific verdict concerns by instructing the jurors
that they were required to agree on a single theory of the crime, the
dissent's "insufficient sentencing information" concern would remain unless
the judge had also taken the additional step (a step unrelated to
petitioner's right to jury agreement on the specific conduct he committed)
of requiring them to return separate forms of verdict.  The only relevant
question for present purposes is what the jury must decide, not what
information it must provide the sentencing judge.

10
    Petitioner also contends that the jury should have been instructed on
the offense of theft, against which respondent argues that any claim for a
lesser included theft offense instruction was waived.  Given respondent's
concession that petitioner has preserved his claim for a robbery
instruction, and our view of the scope of Beck, see infra, at 20-22, there
is no need to resolve this waiver issue.





Subject: 90-5551 -- CONCUR, SCHAD v. ARIZONA

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5551



EDWARD HAROLD SCHAD, Jr., PETITIONER
v. ARIZONA


on writ of certiorari to the supreme court of arizona

[June 21, 1991]



    Justice Scalia, concurring in part and concurring in the judgment.
    The crime for which a jury in Yavapai County, Arizona, convicted Edward
Harold Schad in 1985 has existed in the Anglo-American legal system,
largely unchanged, since at least the early 16th century, see 3 J. Stephen,
A History of the Criminal Law of England 45 (1883); R. Moreland, Law of
Homicide 9-10 (1952).  The common-law crime of murder was the unlawful
killing of a human being by a person with "malice aforethought" or "malice
prepense," which consisted of an intention to kill or grievously injure,
knowledge that an act or omission would probably cause death or grievous
injury, an intention to commit a felony, or an intention to resist lawful
arrest.  Stephen, supra, at 22; see also 4 W. Blackstone, Commentaries
198-201 (1769); 1 M. Hale, Pleas of the Crown 451-466 (1st Am. ed. 1847).
    The common law recognized no degrees of murder; all unlawful killing
with malice aforethought received the same punishment -- death.  See F.
Wharton, Law of Homicide 147 (3d ed. 1907); Moreland, supra, at 199.  The
rigor of this rule led to widespread dissatisfaction in this country.  See
McGautha v. California, 402 U. S. 183, 198 (1971).  In 1794, Pennsylvania
divided common-law murder into two offenses, defining the crimes thus:


"[A]ll murder which shall be perpetrated by means of poison, or lying in
wait, or by any other kind of willful, deliberate, or premeditated killing;
or which shall be committed in the perpetration, or attempt to perpetrate
any arson, rape, robbery, or burglary, shall be deemed murder of the first
degree; and all other kinds of murder shall be deemed murder in the second
degree."  1794 Pa. Laws, ch. 1766, MDRV 2.


That statute was widely copied, and down to the present time the United
States and most States have a single crime of first-degree murder that can
be committed by killing in the course of a robbery as well as premeditated
killing.  See, e. g., 18 U. S. C. MDRV 1111; Cal. Penal Code Ann. MDRV 189
(West 1988 and Supp. 1991); Kan. Stat. Ann. MDRV 21.3401 (Supp. 1990);
Mich. Comp. Laws Ann. MDRV 750.316 (1991); Neb. Rev. Stat. MDRV 28-303
(1989). {1}  It is Arizona's variant of the 1794 Pennsylvania statute under
which Schad was convicted in 1985 and which he challenges today.
    Schad and the dissenting Justices would in effect have us abolish the
crime of first-degree murder and declare that the Due Process Clause of the
Fourteenth Amendment requires the subdivision of that crime into (at least)
premeditated murder and felony murder.  The plurality rejects that course
-- correctly, but not in my view for the correct reason.
    As the plurality observes, 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.  See, e. g., People v. Sullivan, 173 N. Y. 122, 65
N. E. 989 (1903); cf. H. Joyce, Indictments 15 561-562, pp. 654-657 (2d ed.
1924); W. Clark, Criminal Procedure 15 99-103, pp. 322-330 (2d. ed. 1918);
1 J. Bishop, Criminal Procedure 15 434-438, pp. 261-265 (2d. ed. 1872).
That rule is not only constitutional, it is probably indispensable in a
system that requires a unanimous jury verdict to convict.  When a woman's
charred body has been found in a burned house, and there is ample evidence
that the defendant set out to kill her, it would be absurd to set him free
because six jurors believe he strangled her to death (and caused the fire
accidentally in his hasty escape), while six others believe he left her
unconscious and set the fire to kill her.  While that seems perfectly
obvious, it is also true, as the plurality points out, see ante, at 7, that
one can conceive of novel "umbrella" crimes (a felony consisting of either
robbery or failure to file a tax return) where permitting a 6-6 verdict
would seem contrary to due process.
    The issue before us is whether the present crime falls into the former
or the latter category.  The plurality makes heavy weather of this issue,
because it starts from the proposition that "neither the antiquity of a
practice nor the fact of steadfast legislative and judicial adherence to it
through the centuries insulates it from constitutional attack," ante, at 15
(internal quotations omitted).  That is true enough with respect to some
constitutional attacks, but not, in my view, with respect to attacks under
either the procedural component, see Pacific Mutual Life Insurance Co. v.
Haslip, 499 U. S. ---, --- (1991) (slip op., at 15) (Scalia, J., concurring
in judgment), or the so-called "substantive" component, see Michael H. v.
Gerald D., 491 U. S. 110, 121-130 (1989) (plurality opinion), of the Due
Process Clause.  It is precisely the historical practices that define what
is "due."  "Fundamental fairness" analysis may appropriately be applied to
departures from traditional American conceptions of due process; but when
judges test their individual notions of "fairness" against an American
tradition that is deep and broad and continuing, it is not the tradition
that is on trial, but the judges.
    And that is the case here.  Submitting killing in the course of a
robbery and premeditated killing to the jury under a single charge is not
some novel composite that can be subjected to the indignity of "fundamental
fairness" review.  It was the norm when this country was founded, was the
norm when the Fourteenth Amendment was adopted in 1868, and remains the
norm today.  Unless we are here to invent a Constitution rather than
enforce one, it is impossible that a practice as old as the common law and
still in existence in the vast majority of States does not provide that
process which is "due."
    If I did not believe that, I might well be with the dissenters in this
case.  Certainly the plurality provides no satisfactory explanation of why
(apart from the endorsement of history) it is permissible to combine in one
count killing in the course of robbery and killing by premeditation.  The
only point it makes is that the depravity of mind required for the two may
be considered morally equivalent.  Ante, at 17-19.  But the petitioner here
does not complain about lack of moral equivalence: he complains that, as
far as we know, only six jurors believed he was participating in a robbery,
and only six believed he intended to kill.  Perhaps moral equivalence is a
necessary condition for allowing such a verdict to stand, but surely the
plurality does not pretend that it is sufficient.  (We would not permit,
for example, an indictment charging that the defendant assaulted either X
on Tuesday or Y on Wednesday, despite the "moral equivalence" of those two
acts.)  Thus, the plurality approves the Arizona practice in the present
case because it meets one of the conditions for constitutional validity.
It does not say what the other conditions are, or why the Arizona practice
meets them.  With respect, I do not think this delivers the "critical
examination," ante, at 17, which the plurality promises as a substitute for
reliance upon historical practice.  In fact, I think its analysis
ultimately relies upon nothing but historical practice (whence does it
derive even the "moral equivalence" requirement?) -- but to acknowledge
that reality would be to acknowledge a rational limitation upon our power,
which bob-tailed "critical examination" obviously is not.  "Th[e]
requirement of [due process] is met if the trial is had according to the
settled course of judicial proceedings.  Due process of law is process due
according to the law of the land."  Walker v. Sauvinet, 92 U. S. 90, 93
(1876) (citation omitted).
    With respect to the second claim asserted by petitioner, I agree with
Justice Souter's analysis, and join Part III of his opinion.  For these
reasons, I would affirm the judgment of the Supreme Court of Arizona.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    Still other States never established degrees of murder, and retain a
single crime of "murder" that encompasses both premeditated killing and
killing in the course of a robbery.  See, e. g., S. C. Code MDRV 16-3-10
(1985).





Subject: 90-5551 -- DISSENT, SCHAD v. ARIZONA

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5551



EDWARD HAROLD SCHAD, Jr., PETITIONER
v. ARIZONA


on writ of certiorari to the supreme court of arizona

[June 21, 1991]



    Justice White, with whom Justice Marshall, Justice Blackmun, and
Justice Stevens join, dissenting.

    Because I disagree with the result reached on each of the two separate
issues before the Court, and because what I deem to be the proper result on
either issue alone warrants reversal of petitioner's conviction, I
respectfully dissent.

I
    As In re Winship, 397 U. S. 358 (1970), makes clear, due process
mandates "proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which [the defendant] is charged."  Id., at 364.
In finding that the general jury verdict returned against petitioner meets
the requirements of due process, the plurality ignores the import of
Winship's holding.  In addition, the plurality mischaracter izes the nature
of the constitutional problem in this case.
    It is true that we generally give great deference to the States in
defining the elements of crimes.  I fail to see, however, how that truism
advances the plurality's case.  There is no failure to defer in recognizing
the obvious: that pre meditated murder and felony murder are alternative
courses of conduct by which the crime of first-degree murder may be
established.  The statute provides:

    "A murder which is perpetrated by means of poison or lying in wait,
torture or by any other kind of wilful, deliberate or premeditated killing,
or which is committed in avoiding or preventing lawful arrest or effecting
an escape from legal custody, or in the perpetration of, or attempt to
perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping,
or mayhem, or sexual molestation of a child under the age of thirteen
years, is murder of the first degree.  All other kinds of murder are of the
second degree."  Ariz. Rev. Stat. Ann. MDRV 13-452 (Supp. 1973).


The statute thus sets forth three general categories of conduct which
constitute first-degree murder: a "wilful, deliberate or premeditated
killing"; a killing committed to avoid arrest or effect escape; and a
killing which occurs during the attempt or commission of various specified
felonies.
    Here, the prosecution set out to convict petitioner of firstdegree
murder by either of two different paths, premeditated murder and felony
murder/robbery.  Yet while these two paths both lead to a conviction for
first-degree murder, they do so by divergent routes possessing no elements
in common except the fact of a murder.  In his closing argument to the
jury, the prosecutor himself emphasized the difference between premeditated
murder and felony murder:

"There are two types of first degree murder, two ways for first degree
murder to be committed.  [One] is premeditated murder.  There are three
elements to that.  One, that a killing take place, that the defendant
caused someone's death.  Secondly, that he do so with malice.  And malice
simply means that he intended to kill or that he was very reckless in
disregarding the life of the person he killed. . . .
    "And along with the killing and the malice, attached to that killing is
a third element, that of premeditation, which simply means that the
defendant contemplated that he would cause death, he reflected upon that.
    "The other type of first degree murder, members of the jury, is what we
call felony murder.  It only has two components [sic] parts.  One, that a
death be caused, and, two, that that death be caused in the course of a
felony, in this case a robbery.  And so if you find that the defendant
committed a robbery and killed in the process of that robbery, that also is
first degree murder."  App. 6-7.


    Unlike premeditated murder, felony murder does not require that the
defendant commit the killing or even intend to kill, so long as the
defendant is involved in the underlying felony.  On the other hand, felony
murder -- but not premeditated murder -- requires proof that the defendant
had the requisite intent to commit and did commit the underlying felony.
State v. McLoughlin, 139 Ariz. 481, 485, 679 P. 2d 504, 508 (1984).
Premeditated murder, however, demands an intent to kill as well as
premeditation, neither of which is required to prove felony murder.  Thus,
contrary to the plurality's assertion, see ante, at 13, the difference
between the two paths is not merely one of a substitution of one mens rea
for another.  Rather, each contains separate elements of conduct and state
of mind which cannot be mixed and matched at will. {1}  It is particularly
fanciful to equate an intent to do no more than rob with a premeditated
intent to murder.
    Consequently, a verdict that simply pronounces a defendant "guilty of
first-degree murder" provides no clues as to whether the jury agrees that
the three elements of premed itated murder or the two elements of felony
murder have been proven beyond a reasonable doubt.  Instead, it is entirely
possible that half of the jury believed the defendant was guilty of
premeditated murder and not guilty of felony murder/robbery, while half
believed exactly the reverse.  To put the matter another way, the plurality
affirms this con viction without knowing that even a single element of
either of the ways for proving first-degree murder, except the fact of a
killing, has been found by a majority of the jury, let alone found
unanimously by the jury as required by Arizona law.  A defendant charged
with first-degree murder is at least entitled to a verdict -- something
petitioner did not get in this case as long as the possibility exists that
no more than six jurors voted for any one element of first-degree murder,
except the fact of a killing. {2}
    The means by which the plurality attempts to justify the result it
reaches do not withstand scrutiny.  In focusing on our vagueness cases, see
ante, at 6-7, the plurality misses the point.  The issue is not whether the
statute here is so vague that an individual cannot reasonably know what
conduct is criminalized.  Indeed, the statute's specificity renders our
vagueness cases inapplicable.  The problem is that the Arizona statute,
under a single heading, criminalizes several alternative patterns of
conduct.  While a State is free to construct a statute in this way, it
violates due process for a State to invoke more than one statutory
alternative, each with different specified elements, without requiring that
the jury indicate on which of the alternatives it has based the defendant's
guilt.
    The plurality concedes that "nothing in our history suggests that the
Due Process Clause would permit a State to convict anyone under a charge of
`Crime' so generic that any combination of jury findings of embezzlement,
reckless driving, murder, burglary, tax evasion, or littering, for example,
would suffice for conviction."  Ante, at 7.  But this is very close to the
effect of the jury verdict in this case.  Allowing the jury to return a
generic verdict following a prosecution on two separate theories with
specified elements has the same effect as a jury verdict of "guilty of
crime" based on alternative theories of embezzlement or reckless driving.
Thus the statement that "[i]n Arizona, first degree murder is only one
crime regardless whether it occurs as a premeditated murder or a felony
murder," State v. Encinas, 132 Ariz. 493, 496, 647 P. 2d 624, 627 (1982),
neither recognizes nor resolves the issue in this case.
    The plurality likewise misses the mark in attempting to compare this
case to those in which the issue concerned proof of facts regarding the
particular means by which a crime was committed.  See ante, at 5-6.  In the
case of burglary, for example, the manner of entering is not an element of
the crime; thus, Winship would not require proof beyond a reasonable doubt
of such factual details as whether a defendant pried open a window with a
screwdriver or a crowbar.  It would, however, require the jury to find
beyond a rea sonable doubt that the defendant in fact broke and entered,
because those are the "fact[s] necessary to constitute the crime."  397 U.
S., at 364. {3}
    Nor do our cases concerning the shifting of burdens and the creation of
presumptions help the plurality's cause.  See ante, at 12.  Although this
Court consistently has given deference to the State's definition of a
crime, the Court also has made clear that having set forth the elements of
a crime, a State is not free to remove the burden of proving one of those
elements from the prosecution.  For example, in Sand strom v. Montana, 442
U. S. 510 (1979), the Court recognized that "under Montana law, whether the
crime was committed purposely or knowingly is a fact necessary to consti
tute the crime of deliberate homicide," and stressed that the State
therefore could not shift the burden of proving lack of intent to the
defendant.  Id., at 520-521.  Conversely, in Patterson v. New York, 432 U.
S. 197, 205-206 (1977), the Court found that it did not violate due process
to require a defendant to establish the affirmative defense of extreme
emotional disturbance, because "[t]he death, the intent to kill, and
causation are the facts that the State is required to prove beyond a
reasonable doubt if a person is to be convicted of murder.  No further
facts are either presumed or inferred in order to constitute the crime."
Here, the question is not whether the State "must be permitted a degree of
flexibility" in defining the elements of the offense.  See ante, at 12.
Surely it is entitled to that deference.  But having determined that
premeditated murder and felony murder are separate paths to establishing
first-degree murder, each containing a separate set of elements from the
other, the State must be held to its choice. {4}  Cf. Evitts v. Lucey, 469
U. S. 387, 401 (1985).  To allow the State to avoid the consequences of its
legislative choices through judicial interpretation would permit the State
to escape federal constitutional scrutiny even when its actions violate
rudimentary due process.
    The suggestion that the state of mind required for felony
murder/robbery and that for premeditated murder may reasonably be
considered equivalent, see ante, at 18, is not only unbelievable, but it
also ignores the distinct consequences that may flow from a conviction for
each offense at sentencing.  Assuming that the requisite statutory
aggravating circumstance exists, the death penalty may be imposed for
premeditated murder, because a conviction necessarily carries with it a
finding that the defendant intended to kill.  See Ariz. Rev. Stat. Ann.
MDRV 13-703 (1989).  This is not the case with felony murder, for a
conviction only requires that the death occur during the felony; the
defendant need not be proven to be the killer.  Thus, this Court has
required that in order for the death penalty to be imposed for felony
murder, there must be a finding that the defendant in fact killed,
attempted to kill, or intended that a killing take place or that lethal
force be used, Enmund v. Florida, 458 U. S. 782, 797 (1982), or that the
defendant was a major participant in the felony and exhibited reckless
indifference to human life, Tison v. Arizona, 481 U. S. 137, 158 (1987).
    In the instant case, the general verdict rendered by the jury contained
no finding of intent or of actual killing by petitioner.  The sentencing
judge declared, however:

"[T]he court does consider the fact that a felony murder instruction was
given in mitigation, however there is not evidence to indicate that this
murder was merely incidental to a robbery.  The nature of the killing
itself belies that. . . .
    "The court finds beyond a reasonable doubt that the defendant attempted
to kill Larry Grove, intended to kill Larry Grove and that defendant did
kill Larry Grove.
    "The victim was strangled to death by a ligature drawn very tightly
about the neck and tied in a double knot.  No other reasonable conclusion
can be drawn from the proof in this case, notwithstanding the felony murder
instruction."  Tr. 8-9 (Aug. 29, 1985).


Regardless of what the jury actually had found in the guilt phase of the
trial, the sentencing judge believed the murder was premeditated.  Contrary
to the plurality's suggestion, see ante, at 18, n. 9, the problem is not
that a general verdict fails to provide the sentencing judge with
sufficient information concerning whether to impose the death sentence.
The issue is much more serious than that.  If in fact the jury found that
premeditation was lacking, but that petitioner had committed felony
murder/robbery, then the sentencing judge's finding was in direct
contravention of the jury verdict.  It is clear, therefore, that the
general jury verdict creates an intolerable risk that a sentencing judge
may subsequently impose a death sentence based on findings that contradict
those made by the jury during the guilt phase, but not revealed by their
general verdict.  Cf. State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811,
817 (1989).

II
    I also cannot agree that the requirements of Beck v. Alabama, 447 U. S.
625 (1980), were satisfied by the instructions and verdict forms in this
case.  Beck held that "when the evidence unquestionably establishes that
the defendant is guilty of a serious, violent offense -- but leaves some
doubt with respect to an element that would justify conviction of a capital
offense -- the failure to give the jury the `third option' of convicting on
a lesser included offense would seem inevitably to enhance the risk of an
unwarranted conviction."  Id., at 637.  The majority finds Beck satisfied
because the jury here had the opportunity to convict petitioner of
second-degree murder.  See ante, at 20-21.  But that alternative provided
no "third option" to a choice between convicting petitioner of felony
murder/robbery and acquitting him completely, because, as the State
concedes, see Tr. of Oral Arg. 51-52, second-degree murder is a lesser
included offense only of premeditated murder.  Thus, the Arizona Supreme
Court has declared that " `[t]he jury may not be instructed on a lesser
degree of murder than first degree where, under the evidence, it was
committed in the course of a robbery.' "  State v. Clayton, 109 Ariz. 587,
595, 514 P. 2d 720, 728 (1973), quoting State v. Kruchten, 101 Ariz. 186,
196, 417 P. 2d 510, 520 (1966), cert. denied, 385 U. S. 1043 (1967)
(emphasis added).  Consequently, if the jury believed that the course of
events led down the path of felony murder/robbery, rather than premeditated
murder, it could not have convicted petitioner of second-degree murder as a
legitimate "third option" to capital murder or acquittal.
    The State asserts that felony murder has no lesser included offenses.
{5}  In order for a defendant to be convicted of felony murder, however,
there must be evidence to support a conviction on the underlying felony,
and the jury must be instructed as to the elements of the underlying
felony.  Although the jury need not find that the underlying felony was
completed, the felony murder statute requires there to be at least an
attempt to commit the crime.  As a result, the jury could not have
convicted petitioner of felony murder/robbery without first finding him
guilty of robbery or attempted robbery. {6}  Indeed, petitioner's first
conviction was reversed because the trial judge had failed to instruct the
jury on the elements of robbery.  142 Ariz. 619, 691 P. 2d 710 (1984).  As
the Arizona Supreme Court declared, "Fundamental error is present when a
trial judge fails to instruct on matters vital to a proper consideration of
the evidence.  Knowledge of the elements of the underlying felonies was
vital for the jurors to properly consider a felony murder theory."  Id., at
620-621, 691 P. 2d, at 711-712 (citation omitted).
    It is true that the rule in Beck only applies if there is in fact a
lesser included offense to that with which the defendant is charged, for
"[w]here no lesser included offense exists, a lesser included offense
instruction detracts from, rather than enhances, the rationality of the
process."  Spaziano v. Florida, 468 U. S. 447, 455 (1984).  But while
deference is due state legislatures and courts in defining crimes, this
deference has constitutional limits.  In the case of a compound crime such
as felony murder, in which one crime must be proven in order to prove the
other, the underlying crime must, as a matter of law, be a lesser included
offense of the greater.
    Thus, in the instant case, robbery was a lesser included offense of the
felony murder/robbery for which petitioner was tried.  The Arizona Supreme
Court acknowledged that "the evidence supported an instruction and
conviction for robbery," had robbery been a lesser included offense of
felony murder/robbery.  163 Ariz. 411, 417, 788 P. 2d 1162, 1168 (1989).
Consequently, the evidence here met "the independent prerequisite for a
lesser included offense instruction that the evidence at trial must be such
that a jury could rationally find the defendant guilty of the lesser
offense, yet acquit him of the greater."  Schmuck v. United States, 489 U.
S. 705, 716, n. 8 (1989); see Keeble v. United States, 412 U. S. 205, 208
(1973).  Due process required that the jury be given the opportunity to
convict petitioner of robbery, a necessarily lesser included offense of
felony murder/robbery.  See Stevenson v. United States, 162 U. S. 313,
319-320 (1896).
    Nor is it sufficient that a "third option" was given here for one of
the prosecution's theories but not the other.  When the State chooses to
proceed on various theories, each of which has lesser included offenses,
the relevant lesser included instructions and verdict forms on each theory
must be given in order to satisfy Beck.  Anything less renders Beck, and
the due process it guarantees, meaningless.
    With all due respect, I dissent.

 
 
 
 
 


------------------------------------------------------------------------------
1
    Changes to the Arizona first-degree murder statute since the date of
the murder in question make it even clearer that felony murder and
premeditated murder have different elements and involve different mentes
reae.  The statute now provides that the two offenses are alternative means
of establishing first-degree murder.  First, a person is guilty if
"[i]ntending or knowing that his conduct will cause death, such person
causes the death of another with premeditation."  Ariz. Rev. Stat. Ann.
MDRV 13-1105(A)(1) (1989).  Second, a person is guilty if "[a]cting either
alone or with one or more other persons such person commits or attempts to
commit [any one of a series of specified felonies], and in the course of
and in furtherance of such offense or immediate flight from such offense,
such person or another person causes the death of any person."  MDRV
13-1105(A)(2).  The antecedent of the current statute, which used
substantially the same language, took effect on October 1, 1978, less then
two months after the killing at issue occurred.  1977 Ariz. Sess. Laws, Ch.
142, MDRV 60.

2
    Even the Arizona Supreme Court has acknowledged that the lack of
information concerning juror agreement may call into question the validity
of a general jury verdict when the prosecution proceeds under alternative
theories.  State v. Smith, 160 Ariz. 507, 513, 774 P. 2d 811, 817 (1989).
Indeed, petitioner's first trial exemplified this danger.  There the State
proceeded on three theories: premeditated murder, felony murder/robbery,
and felony murder/kidnapping.  The trial judge failed to instruct the jury
on either of the underlying felonies, and the Arizona Supreme Court held
this to be fundamental error.  142 Ariz. 619, 620, 691 P. 2d 710, 711
(1984).  Petitioner's conviction was reversed because it was impossible to
tell from the general jury verdict whether petitioner had been found guilty
of premeditated murder or felony murder, for which the instructions had
been deficient.  Id., at 621, 691 P. 2d, at 712.  Cf. Sandstrom v. Montana,
442 U. S. 510, 526 (1979).

3
    For similar reasons, the plurality's focus on the statutorily
enumerated means of satisfying a given element of an offense, see ante, at
10, n. 6, is misplaced.

4
    Even if the crime of first-degree murder were generic, that different
categories of the offense carry risks of different punishment is constitu
tionally significant.  In Mullaney v. Wilbur, 421 U. S. 684 (1975), for
example, this Court concluded that the absence of "heat of passion on
sudden provocation," while not an expressly stated element of the offense
of "homicide," was essential to reduce the punishment category of the crime
from that of murder to manslaughter.  Id., at 697, 699.  Consequently, the
State there violated In re Winship, 397 U. S. 358 (1970), and principles of
due process by requiring the defendant to establish the absence of the
intent required for murder, and thereby rebut the presumption of malice.
Mullaney, supra, at 703-704.  As discussed below, the disparate intent
requirements of premeditated murder and felony murder have lifeor-death
consequences at sentencing.

5
    Arizona law has not been consistent on this point.  Arizona cases have
long said that "there is no lesser included homicide offense of the crime
of felony murder since the mens rea necessary to satisfy the premeditation
element of first degree murder is supplied by the specific intent required
for the felony."  State v. Arias, 131 Ariz. 441, 444, 641 P. 2d 1285, 1288
(1982) (emphasis added).  Recent cases have omitted the crucial word
"homicide."  See, e. g., State v. LaGrand, 153 Ariz. 21, 29-30, 734 P. 2d
563, 571-572, cert. denied, 484 U. S. 872-873 (1987).

6
    In this Court's recent decision in Schmuck v. United States, 489 U. S.
705 (1989), we adopted the "elements" test for defining "necessarily
included" offenses for purposes of Federal Rule of Criminal Procedure
31(c).  "Under this test, one offense is not `necessarily included' in
another unless the elements of the lesser offense are a subset of the
elements of the charged offense."  Schmuck, supra, at 716.  See also Berra
v. United States, 351 U. S. 131, 134 (1956).  Here that test is met, for
petitioner could not be convicted of felony murder/robbery unless the jury
found that a robbery, or an attempt to commit robbery, had occurred.
