Stephens v. Kemp (602 F. Supp. 960, 1984)

OWENS, Chief Judge:

Petitioner Alpha Otis O’Daniel Stephens is before this court on his third application for habeas corpus relief under 28 U.S.C.A. § 2254 (West 1977). In his petition, petitioner asserts only one claim in support of his prayer for relief: the inadequacy of the trial court’s instructions to the jury regarding the meaning and role of mitigating circumstances.

The respondent has answered by denying that any of petitioner’s constitutional rights have been violated as a result of the sentencing phase charge. The respondent further pleads that this action constitutes an abuse of the habeas corpus process, and has therefore moved to dismiss this action pursuant to Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C.A. foll. § 2254 (West 1977). Respondent asserts that petitioner should have raised this claim in his second application for habeas corpus relief filed before this court oh November 15, 1983. An evidentiary hearing, as required by Potts v. Zant, 638 F.2d 727, 747 (5th Cir.), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981), was held on December 5, 1984.

Issues Presented

The court perceives that two issues have been raised by petitioner’s application. First, both parties agree that the constitutional sufficiency of the trial court’s charge on mitigating circumstances was specifically considered and ruled upon against petitioner in his first application for federal habeas corpus relief. Stephens v. Zant, 631 F.2d 397, 404-05 (5th Cir.1980), modified on reh’g, 648 F.2d 446 (5th Cir.1981), rev’d on other grounds, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (hereinafter referred to as Stephens I). Petitioner maintains, however, that there has been an intervening change in the law which renders his sentencing phase charge constitutionally insufficient. Therefore, the court must determine if such a change has in fact occurred. Second, respondent, while not conceding that there has been an intervening change in the law, argues that if such a change occurred, it took place prior to the November, 1983, filing of petitioner’s second application for federal habeas corpus relief, and that petitioner, having failed to raise this claim in his second petition, should now be precluded from asserting this issue. Therefore, assuming a change in the law occurred, this court must determine if this change took place prior to November, 1983, and, if so, whether petitioner can be excused for failing to present this claim in his previous appearance before this court.

The Jury Charge on Mitigation — Intervening Change in the Law

The sentencing phase of petitioner’s trial took place on January 21, 1975. The trial court gave the following further charge regarding the definition and role of mitigating circumstances:

FURTHER CHARGE OF THE COURT:

Gentlemen of the Jury, the defendant in this case has been found guilty at your hands of the offense of Murder, and it is your duty to make certain determinations with respect to the penalty to be imposed as punishment for that offense. Now in arriving at your determinations in this regard you are authorized to consider all of the evidence received in court throughout the trial before you. You are further authorized to consider all facts and circumstances presented in ex-tinuation [sic] mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense. Under the law of this State every person guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case. In all cases of Murder for which the death penalty may be authorized the jury shall consider any mitigating circumstances or aggravating circumstances authorized by law. You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proved beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death. If you fix punishment at death by electrocution you would recite in the exact words which I have given you the one or more circumstances you found to be proven beyond a reasonable doubt. You would so state in your verdict, and after reciting this you would state, we .fix punishment at death. On the other hand, if you recommend mercy for the defendant this will result in imprisonment for life of the defendant. In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find, and you would simply state in your verdict, we fix punishment at life in prison. Now, whatever your verdict may be with respect to the responsibility you have regarding sentencing please write these out, Mr. Foreman, immediately below the previous verdict you have rendered. Be sure that it is dated and that it bears your signature as foreman. Once again when you have arrived at your verdict on the sentencing phase of the case let us know. We will then receive the verdict from you and have it published here in open court. Please retire now and consider the sentence in this case.

REPORTER’S NOTE: The jury retires from the courtroom.

Record at 320-22.

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the plurality opinion of the Supreme Court held that a jury considering the imposition of the death penalty must be allowed to consider, as a mitigating factor, “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. at 2965.

In October of 1978, the former Fifth Circuit Court of Appeals interpreted Lockett as requiring a specific charge defining and explaining mitigating circumstances:

This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell [v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978)], then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against death.

Chenault v. Stynchcombe, 581 F.2d 444, 448 (5th Cir.1978).

Petitioner’s first petition for a federal writ of habeas corpus was filed in this court on February 8,1979. In this petition, petitioner asserted that the trial court’s charge on mitigating circumstances was inadequate. On appeal to the former Fifth Circuit, the NAACP Legal Defense Fund filed a brief as amicus curiae (see Appendix A to this opinion), wherein this issue was specifically raised in light of Chenault. See Brief for Amicus Curiae at 35-47, Stephens v. Zant, 631 F.2d 397 (5th Cir.1980) (reproduced herein as Appendix A). The Fifth Circuit Court of Appeals rejected this claim, stating:

III. IMPROPER JURY INSTRUCTION

Petitioner contends that, while the jury was instructed in the sentencing phase of the trial that it must find at least one statutory aggravating circumstance before it could impose a death sentence, it was not instructed that even if it found such a circumstance it need not impose death.

When an appellate court reviews the adequacy of an instruction to the jury, it must view the charge as a whole. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. Brooks, 611 F.2d 614, 619 (5th Cir.1980). Only when the charge taken in its entirety fails to fairly present the issues to the jury will error be found. United States v. Chandler, 586 F.2d 593, 606 (5th Cir.1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979).

In his charge to the jury, the trial judge instructed them that they were to consider all the evidence of the case, including evidence of mitigation and aggravation. He told the jury that unless one of the statutory aggravating circumstances was found to be proven beyond a reasonable doubt, they would not be authorized to impose a death penalty. He then specified which aggravating circumstances they would consider. He told them that if they wished to recommend mercy, they did not have to recite any mitigating or aggravating circumstances they might find. He concluded by instructing them how to fill out the forms.

Considering the charge as a whole, it is clear that the issue was fairly presented to the jury. The clear implication of the charge that the jury could recommend mercy without stating what mitigating or aggravating circumstances they found to be present is that aggravating circumstances could be present and yet the jury could still be free to impose life imprisonment. Petitioner’s contention is rejected.

Stephens I, 631 F.2d at 404-05. Inexplicably, the opinion failed to cite or distinguish Chenault.

Subsequent decisions by Unit B. of the former Fifth Circuit Court of Appeals and by the Eleventh Circuit Court of Appeals— all of which cite and rely upon Chenault —have reiterated the principle that the trial court must define and explain the term mitigating circumstances. In Spivey v. Zant, 661 F.2d 464 (5th Cir.1981) (Unit B), decided on November 16, 1981, the court, after discussing Chenault at length, id. at 470-71, stated:

[W]e hold that the eighth and fourteenth amendments require that when a jury is charged with the decision whether to impose the death penalty, the jury must receive clear instructions which not only do not preclude consideration of mitigating factors, Lockett, but which also ‘guid[e] and focu[s] the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender ... ’ Jurek v. Texas, 428 U.S. [262] at 274, 96 S.Ct. [2950] at 2957 [49 L.Ed.2d 929 (1976)]. In most cases, this will mean that the judge must clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death; in order to do so, the judge will normally tell the jury what a mitigating circumstance is and what its function is in the jury’s sentencing deliberations.

Id. at 471.

In Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983), decided on May 16, 1983, the court reviewed an instruction similar to the charge at issue in the instant action:

You are authorized to consider the facts and circumstances, if any, in extenuation, mitigation or aggravation of punishment which may have been submitted to you. However, it is not essential to your decision that you find extenuating or mitigating facts and circumstances on the one hand, or facts and circumstances in aggravation on the other. Please do not confuse this with a charge which I shall give you a little bit later insofar as a statutory aggravating circumstance may be concerned.

Id. at 1501. The court ruled that this charge was constitutionally inadequate:

The charge fails to provide clear instructions on the function of mitigating circumstances and no guidance on the relationship between mitigating and aggravating circumstances. As Spivey v. Zant teaches, jury instructions must ‘describe the nature and function of mitigating circumstances’ and ‘communicate to the jury that the law recognizes the existence of facts or circumstances which, though not justifying or excusing the offense, may properly be considered in determining whether to impose the death sentence.’ 661 F.2d at 472 (footnote omitted). See also Coker v. Georgia, 433 U.S. 584, 590-91, 97 S.Ct. 2861, 2865, 53 L.Ed.2d 982 (1977). The Spivey court explained that most cases will require the court to ‘tell the jury what a mitigating circumstance is and what its function is in the jury’s sentencing deliberations.’ 661 F.2d at 471 (footnote omitted).

Although the charge authorized the jury to consider circumstances in extenuation or mitigation, see portion of charge cited, supra, at 1501, the court failed to explain what function such a consideration would play in sentencing deliberations. An authorization to consider mitigating circumstances is a hallow instruction when unaccompanied by an explanation informing the jury why the law allows such a consideration and what effect a finding of mitigating circumstances has on the ultimate recommendation of sentence. We cannot fit this instruction within the requirements of Spivey. ‘Capital sentencing instructions which do not clearly guide a jury in its understanding of mitigating circumstances and their purpose ... violate the eighth and fourteenth amendments.’ Goodwin [v. Balkcom], 684 F.2d 794, 801-02 [(11th Cir.1982)] (footnote omitted). Therefore, West-brook’s habeas corpus petition seeking relief from his death sentence must be granted on this ground because of the sentencing instructions's inadequacies concerning the nature and function of mitigating circumstances.

Id. at 1503.

In Finney v. Zant, 709 F.2d 643 (11th Cir.1983), decided on July 11, 1983, the court found the jury charge on mitigating circumstances “virtually identical” to the charge found inadequate in Westbrook, and granted the writ of habeas corpus on that ground. Id. at 646.

As noted, the decision in Spivey relies heavily upon Chenault, and both West-brook and Finney rely upon Spivey. None of these cases purport to explain or distinguish the panel’s ruling in Stephens I upholding the charge on mitigating circumstances. In fact, this court has found no Fifth or Eleventh Circuit opinion after Chenault upholding a charge as limited as the instruction given in petitioner's case. Nevertheless, petitioner’s claim was fully and fairly litigated, and a panel of the former Fifth Circuit Court of Appeals has squarely rejected the identical claim presented here.

Petitioner, citing Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), argues that Spivey, Westbrook, and Finney constitute an intervening change in the law, arising since the date of his first federal habeas appeal, and that this change entitles him to relitigate the identical claim in this his third application for federal habeas corpus relief. This court does not agree that a change in the law occurred. The decision in Chenault established the law on this issue. Chenault, of course, was decided prior to the decision in Stephens I. Chenault was urged upon the panel as a basis for relief, but the panel found the charge constitutionally sufficient. The decisions in Spivey, Westbrook, and Finney simply embellish the foundation laid in Chenault. They do not represent a “change” in the governing law. Consequently, this court must view the apparent dichotomy between Stephens I and Chenault, Spivey, Westbrook, and Finney as a difference of opinion among various panels of the Circuit Court in the application of pre-existing law. Contrary to petitioner’s invitation, this court is without authority to “overrule” or ignore the prior Fifth Circuit opinion in this case. See Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984). Accordingly, petitioner’s application is without constitutional merit.

Abuse of the Writ and Excusable Neglect

Assuming that its interpretation of the preceding issue is incorrect, the court must consider the issue of whether petitioner can be excused for failing to raise this claim in his second federal habeas petition.

Petitioner’s present counsel stated in argument that they first became associated with this case in the summer preceding petitioner’s second habeas- petition, which they filed on November 15, 1983. They argued that, in light of the Fifth Circuit’s original ruling upholding the sufficiency of the charge concerning mitigating circumstances, they reasonably concluded that there was no reason to investigate or research any issues arising from the trial court’s sentencing phase charge. Therefore, they claim, they were unaware of the existence and possible relevance of Spivey, Westbrook, or Finney. According to petitioner’s counsel, they inadvertently discovered the possible applicability of these cases after this court had ruled upon their second petition. Counsel concede that these cases could have been discovered pri- or to November of 1983, and thus their failure to do so was, in hindsight, a form of neglect. Nevertheless, arguing that the Fifth Circuit in petitioner’s first federal habeas appeal apparently foreclosed any relitigation of the jury charge issue, petitioner asserts that his failure to assert this claim in November, 1983, was the result of “excusable neglect” under Thomas v. Zant, 697 F.2d 977, 986 (11th Cir.1983), and that he is therefore entitled to be heard on the merits of this claim.

The court cannot accept this explanation. Spivey, Westbrook, and Finney were all decided long before November 15, 1983. Petitioner’s lead counsel admits that neither he nor any of the lawyers (including local Georgia counsel) or paralegals assisting him made any effort prior to the filing of the second petition to research the decided cases upon which he now relies. Petitioner’s lead counsel is a member of a law firm that employs over 350 attorneys, and possesses the most modern legal research facilities, including computer assisted legal research services. Counsel concede that, had any effort been made, Spivey, Westbrook, and Finney could have been discovered and analyzed prior to November, 1983. By simply “Shepardizing” the Fifth Circuit’s prior decision in their own case, counsel would have been alerted to the decision in Westbrook, which in turn relies upon Spivey and controls Finney. Similarly, the use of basic research techniques such as the West Key Number System, Westlaw, or Lexis would have identified the possible relevance of these cases prior to the filing of petitioner’s second petition. Finally, the court is not convinced that petitioner’s counsel in good faith believed that they were completely precluded from challenging the sentencing phase charge. Indeed, in petitioner’s second habeas petition he specifically challenged the sufficiency of the sentencing phase charge insofar as it failed to instruct the jury that the death penalty required a finding that petitioner actually killed or intended to kill his victim. See Stephens v. Kemp, 578 F.Supp. at 106-07.

If there has been an intervening change in the law, the change occurred prior to the filing of petitioner’s second habeas petition on November 15, 1983. With respect to this third petition, there has been no intervening change in the law; petitioner’s claim accrued before his second petition was filed. Counsel for petitioner have failed to proffer a reasonable explanation for their failure to ascertain the existence and possible significance of the reported cases signifying this change.

In order to determine if the failure to raise this claim in a prior action is attributable to “excusable” neglect, the court must consider the interests of justice with respect to all of the parties. The court obviously appreciates the magnitude of this case and petitioner’s sentence. However, the court must also consider that petitioner was tried and sentenced in 1975. Society is entitled to expect finality in litigation. The state’s, ability to present evidence at a subsequent resentencing diminishes every day. Petitioner has possessed the tools with which to construct his claim at least as early as the Spivey decision in 1981, yet he has failed to do so until the eleventh hour. Finally, his claim has been fully briefed, litigated, and decided adverse to petitioner by a panel of the former Fifth Circuit Court of Appeals. This decision suggests that petitioner’s sentence, despite the trial court’s charge, is not the result of plain error or fundamental unfairness. Accordingly, the court hereby determines that petitioner’s failure to raise this claim in his second habeas petition was inexcusable.

Conclusion

Petitioner’s claim regarding an intervening change in the law with respect to the jury charge on mitigation is without merit; the prior decision on this issue in Stephens v. Zant, 631 F.2d 397, 404-05 (5th Cir.1980) requires a dismissal of this action. Alternatively, even if petitioner’s claim regarding an intervening change in the law is correct, petitioner’s failure to assert this issue in his second federal habeas petition was and is inexcusable. Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C.A. foil. § 2254 (West 1977). Accordingly, petitioner’s application for habeas corpus relief is DENIED. Petitioner’s motion for a stay ’ of execution is similarly DENIED.

APPENDIX “A” IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 79-2407

ALPHA OTIS STEPHENS,

Petitioner-Appellant,

-v.-

WALTER ZANT, Warden, Georgia

Diagnostic & Classification

Center,

Respondent-Appellee.

On Appeal from the United States District Court for the Middle District of Georgia Macon Division

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

JACK GREENBERG

JAMES M. NABRIT, III

JOEL BERGER

JOHN CHARLES BOGER

DEBORAH FINS

10 Columbus Circle

New York, New York 10019

Telephone: (212)586-8397

ANTHONY G. AMSTERDAM

Stanford University Law School

Of Counsel: Stanford, California 94305

Telephone: (415)497-3553

RICHARD SHAPIRO

H. DIANA HICKS ATTORNEYS FOR THE NAACP

SOUTHERN PRISONERS’ DEFENSE LEGAL AND EDUCATIONAL FUND,

COMMITTEE INC.

344 Camp Street

New Orleans, Louisiana 70130 U.S. COURT OF APPEALS

FILED

OCT 311979

GILBERT F. GANUCHEAU

Clerk

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICUS CURIAE ..................... 969

ISSUES PRESENTED .................................................. 970

STATEMENT OF THE CASE ........................................... 970

Course Of Prior Proceedings ........................................ 970

Statement Of Facts ................................................. 971

SUMMARY OF ARGUMENT ........................................... 974

ARGUMENT ...........................................................-974

Introduction ........................................................ 974

I Appellant’s Death Sentence, Which Was Based In Part On An Unconstitutionally Vague Aggravating Circumstance, Violates The Eighth And Fourteenth Amendment ........................................ 976

II The Trial Court’s Failure Adequately To Instruct Appellant’s Jury Concerning Its Sentencing Responsibilities Under Ga. Code Ann. § 27-2534.1(6) — Especially As To The Nature And Significance Of Mitigating Circumstances And The Jury’s Power To Impose A Life Sentence Despite A Finding Of Aggravating Circumstances — Renders Appellant’s Death Sentence Unconstitutional Under The Eighth And Fourteenth Amendments ............................................................. 980

CONCLUSION ...........................................................984

Appendix A, Sentencing Charge, State v. Stephens

Appendix B, Sentencing Portion of Charge, State v. Furman

TABLE OF CASES

Page

Andres v. United States, 333 U.S. 740 (1948) ...................... 977, 978

Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976) ................ 873, 976

Bachellar v. Maryland, 397 U.S. 564 (1970) ........................ 977

Bell v. Ohio, 438 U.S. 632 (1978) .................................. 982

Calton v. Utah, 130 U.S. 83 (1889) ................................ 981

Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978) ............. 974, 976, 983, 984, 984

Coker v. Georgia, 433 U.S. 584 (1977) ............................. 969, 975 981, 982

Cramer v. United States, 325 U.S. 1 (1945) ........................ 977

Eberheart v. Georgia, 433 U.S. 917 (1977) (per curiam) ............. 975

Furman v. Georgia, 408 U.S. 238 (1972) ........................... 969, 978 977, 983

Gardner v. Florida, 430 U.S. 349 (1977) ............................ 969, 974, 976, 979, 979, 984

Godfrey v. Georgia, cert. granted, _U.S. _, 48 U.S.L.W. 3241 (U.S. Octo. 9, 1979) (No. 79-6899) ............................... 976

Grayned v. Rockford, 408 U.S. 104 (1972) .......................... 978, 979

Green v. Georgia, _ U.S. _, 60 L.Ed.2d 738 (1979) ............. 980

Gregg v. Georgia, 428 U.S. 153 (1976) ............................. 974, 974, 975, 978, 979, 979, 979, 979, 980, 981, 981, 982, 982, 983, 985

Gregory v. Chicago, 394 U.S. 111 (1969) ........................... 977

Hall v. State, 241 Ga. 252, 244 S.E.2d 833 (1978) ...................982

Johnson v. Commonwealth, _ Va. _, 255 S.E.2d 525 (1975) ...... 982

Jurek v. Texas, 428 U.S. 262 (1972) ............................... 969, 976, 984

Legare v. Georgia, 243 Ga. 744, _ S.E.2d _ (1979), petition for cert. filed, Sept. 20, 1979 (No. 79-5391) .......................... 970

Lockett v. Ohio, 438 U.S. 586 (1978) ............................... 969, 976, 977, 979, 980, 982

McCaskill v. State, 344 So.2d 1276 (Fla.1977) ....................... 982

McGautha v. California, 402 U.S. 183 (1971) ....................... 982

Morgan v. Georgia, 240 Ga. 485, 232 S.E.2d 646 (1979), petition for reh’g filed, June 14, 1979 (No. 79-6140) ......................... 970

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) ........... 979

Presnell v. Georgia, 439 U.S. 14 (1978) ............................ 980

Proffitt v. Florida, 428 U.S. 240 (1976) ............................ 980, 982

(Harry) Roberts v. Louisiana, 431 U.S. 633 (1977) .................. 977

(Stanislas) Roberts v. Louisiana, 428 U.S. 325 (1976) ............... 969, 976, 978

Ruffin v. Georgia, 243 Ga. 95, 252 S.E.2d 472 (1979), petition for cert. filed, May 15, 1979 (No. 78-6687) .......................... 970

Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) ...................... 976, 980

Smith v. Gouven, 415 U.S. 566 (1974) .............................. 979

Page

Spivey v. Georgia, 241 Ga. 477, 246 S.E.2d 288 (1977), petition for cert. filed, Sept. 21, 1979 (No. 79-5395) ....................... 970

Stephens v. Georgia, 429 U.S. 986 (1976) ....................... 971

Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92 (1978) ........... 971

Stephens v. State, 237 Ga. 259, 227 S.E.2d 261 (1976) ............ 971, 974, 977

Street v. New York, 394 U.S. 576 (1969) ....................... 977

Stromberg v. California, 283 U.S. 350 (1931) .................... 974, 980

Terminiello v. Chicago, 337 U.S. 1 (1949) ....................... 977

Thomas v. Collins, 323 U.S. 516 (1945) ......................... 974

Williams v. North Carolina, 317 U.S. 287 (1942) ................. 974

Woodson v. North Carolina, 428 U.S. 280 (1972) ................ 969, 976, 978, 979, 982, 984

Yates v. United States, 354 U.S. 298 (1957) 977

STATUTES

Ga.Code Ann. § 27-2534.1(b) 973, 982

Ga.Code Ann. § 27-2534.1(b)(1) 973, 976, 976

Ga.Code Ann. § 27-2534.1(b)(7) 976

Ga.Code Ann. § 27-2534.1(b)(9) 977 976

Ga.Code Ann. § 27-2537(e)(3) . 976

OTHER AUTHORITIES

ALI Model Penal Code § 201.6 .................................... 982

Liebman & Shepard, Guiding Capital Sentencing Discretion Beyond the “Boiler Plate”: Mental Disorder As a Mitigating Factor, 66 Geo.L.J. 757 (1978) ............................................. 982

STATEMENT OF INTEREST OF AMI-CUS CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

The NAACP Legal Defense and Educational Fund, Inc. submits a brief amicus curiae in this case for the following reasons:

(1) The Fund is a non-profit corporation established to assist black citizens in securing their constitutional rights. In 1967, it undertook to represent all condemned defendants in the United States, regardless of race, for whom adequate representation could not otherwise be found. It has frequently represented condemned defendants before the Supreme Court of the United States. E.g., Furman v. Georgia, 408 U.S. 238 (1972); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976); Davis v. Georgia, 429 U.S. 122 (1976); Gardner v. Florida, 430 U.S. 349 (1977); Coker v. Georgia, 433 U.S. 584 (1977); and Lockett v. Ohio, 438 U.S. 586 (1978).

(2) The Fund continues to provide legal assistance to indigent condemned prisoners of all races and is now involved as counsel in over one hundred death cases. It represents a substantial number of indigent death-sentenced inmates in Georgia, Florida and Texas who are at various stages of state and federal postconviction proceedings. Additionally, the Fund provides consultative assistance to attorneys representing a large number of other capital defendants within and without this Circuit.

(3) The Southern Prisoners’ Defense Committee, which is of counsel on the brief, provides legal assistance to indigent condemned prisoners throughout the South, consults with other attorneys representing dozens of capital inmates and provides information and educational materials on the defense of capital cases.

(4) This case involves several important constitutional issues present in the cases of over a dozen defendants in Georgia, including several represented by the Fund. For example, in four Georgia cases currently before the Supreme Court of the United States—Morgan v. Georgia, 240 Ga. 485, 232 S.E.2d 646 (1979), petition for reh’g filed, June 14, 1979 (No. 78-6140); Ruffin v. Georgia, 243 Ga. 95, 252 S.E.2d 472 (1979); petition for cert. filed, May 15, 1979 (No. 78-6687); Legare v. Georgia, 243 Ga. 744, 257 S.E.2d 247 (1979), petition for cert. filed, Sept. 20, 1979 (No. 79-5391); and Spivey v. Georgia, 241 Ga. 477, 246 S.E.2d 288 (1979), petition for cert. filed, Sept. 21, 1979 (No. 79-5395) condemned inmates have raised constitutional claims concerning the requisites of sentencing instructions on aggravating and mitigating circumstances in capital cases. This issue has also been raised in federal habeas corpus petitions now pending in district courts in Georgia. The Fund hopes that its brief amicus curiae might aid this Court in resolving the sentencing-instruction claim raised by appellant and briefed in summary fashion by both parties in this case.

ISSUES PRESENTED

1. Whether appellant’s death sentence, imposed in part because of a jury finding of an aggravating circumstance which was subsequently held by the Georgia courts to be unconstitutionally vague, violated the Eighth and Fourteenth Amendments?

2. Whether sentencing instructions to appellant’s trial jury, which did not clearly instruct the jury about mitigating circumstances and their option to recommend against death even if aggravating circumstances were present, complied with the Eighth and Fourteenth Amendments?

STATEMENT OF THE CASE

1. COURSE OF PRIOR PROCEEDINGS

On October 17, 1974, appellant pleaded guilty in the Superior Court of Twiggs County, Georgia to two counts of burglary, three counts of armed robbery, one count of motor vehicle theft, and one count of kidnapping with bodily injury for his part in the abduction and murder of Roy As-bell. He received life sentences for the armed robberies and the kidnapping. Appellant did not appeal those sentences.

Three months later, appellant was tried for the same underlying offense against Roy Asbell in the Superior Court of Bleckley County on an indictment charging murder. On January 21, 1975, he was convicted and sentenced to death.

Appellant appealed his conviction and sentence from Bleckley County to the Supreme Court of Georgia, which affirmed on July 14, 1976. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261 (1976). Appellant’s petition for certiorari to the Supreme Court of the United States was denied on November 29, 1976. Stephens v. Georgia, 429 U.S. 986 (1976).

Appellant filed a petition for a writ of habeas corpus in the Superior Court of Tattnall County on April 4, 1977. After an evidentiary hearing, the Superior Court on December 14, 1977 denied relief. The Supreme Court of Georgia affirmed on July 6, 1979, Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92 (1978), and the Supreme Court of the United States denied a petition for certiorari on November 27, 1978. Stephens v. Hopper, 439 U.S. 991 (1978).

Appellant filed a federal petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, Macon Division, on February 8, 1979. Respondent moved to dismiss the petition, and on May 11, 1979, the district court entered an order denying habeas corpus relief. This appeal followed.

II. STATEMENT OF FACTS

On August 19,1974, appellant Alpha Otis Stephens escaped from the Houston County jail where he was being held pending trial for a prior escape (Tr. T. 117, 214). He travelled to Macon, Georgia, where , he remained for several days. During this time, in the company of other companions, he took illegal drugs and allegedly committed three auto thefts, several burglaries and an armed robbery (Tr. T. 118-19).

During the morning of August 21, 1974, appellant and Claude Sampson, after having ingested a quantity of illegal drugs, went to the home of one Charles Asbell in Twiggs County (Tr. T. 120, 216). Appellant and Sampson entered the Asbell home, which was unoccupied, by breaking the window of an exterior door. Once inside, the two men assembled a number of rifles and shotguns, as well as a .357 Magnum, which they found inside and carried the weapons to their car (Tr. T. 120, 217).

While they were loading the car, Charles Asbell’s father, Roy Asbell, drove up in a Ford Ranchero, and called out, “Nigger, what are you doing in my house?” (Tr. T. 120, 217, 315). As appellant approached Asbell, who had apparently observed the guns in appellant’s car, Asbell reached, into his pocket and drew a .38 Derringer (Tr. T. 217, 315). Appellant kicked the gun away and wrestled Asbell to the ground.

Sampson and appellant, who were still under the influence of drugs, then drove Asbell in his own car to a field several miles from the house, across the Twiggs County line into Bleckley County. Appellant explained that he and Sampson intehded to tie up Asbell in a vacant field, but that Asbell managed to escape and ran across the field to a deserted house (Tr. T. 121, 218, 316).

During his sentencing hearing, appellant testified that he urged Sampson to leave, but Sampson insisted “No, we had better get him” (Tr. T. 316). As the, two approached the abandoned house, Asbell retreated through the front door. Sampson, who had stolen a .357 Magnum from the Asbell residence, went inside. Appellant, who remained on the front steps, heard two shots, after which Sampson walked out, saying “The man had a stick” (Tr. T. 316).

A written statement obtained from appellant by police and marked as State’s Exhibit 14 at trial gave a different account of the shooting. In that statement, appellant purportedly acknowledged direct responsibility, saying, “I shot him three or four times and ran” (Tr. T. 218; St.Ex. 14).

Appellant and Sampson then fled to Savannah, Georgia in Asbell’s car, arriving later that evening. Appellant purchased drugs from a local dealer, checked into the Desoto Hilton under an assumed name (Tr. T. 110, 218), took drugs with a woman he contacted in Savannah, and took her home about 5:00 a.m. the following morning, August 22, 1974 (Tr. T. 162, 168-69, 317).

About 6:00 a.m., a Savannah patrolman found appellant asleep on a bench near a bus stop in possession of a weapon (Tr. T. 89-93). Appellant was arrested for being “drunk on the street,” for carrying a con- . cealed weapon, and for other weapons violations (Tr. T. 156).

Several hours after his arrest, appellant was interviewed by Detective John R. Goode, who took a number of oral and written statements from him during the morning and early afternoon of August 22, 1974 (Tr. T. 108-09, 113-14, 115-17, 127). Detective Goode acknowledged that when he spoke with appellant “it appeared to me that he had been on a pretty good drunk,” but Goode denied that appellant was still intoxicated (Tr. T. 132). Goode also testified that during his interviews, appellant acted strangely:

“He was sitting there in our office and the gleam and glitter in his eyes was out of the ordinary.

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At this time — we couldn’t control Stephens at this time at all.

Q. What do you mean, control him?

A.' Well, sir, his reactions — he—his eyes the gleam and glitter in his eyes — it appeared that he was having illusions [sic] of grandeur or something. It was just like he was reacting the the [sic] crime and so forth. He was beginning to get violent, but fortunately we had him handcuffed and so forth. It was frightening to watch him when he was in this state of mind, the way he was explaining it to us.” (Tr. T. 120-122)

At another point, Detective Goode described appellant as follows:

“[A]s he was sitting in the chair with his hands like this handcuffed to the table leg he was clenching his hands with the handcuffs on that the veins and so forth in his arms got real large so that the handcuffs were tight on his arms. His eyes were real glassy and fixed. He appeared to be a man who in my opinion was demented in some way. I asked him if the handcuffs were too tight and he didn’t even hear me. He didn’t seem to know that we were even in the room.” (Tr. T. 150)

Appellant stated that he had taken “Purple Haze,” a drug composed of acid or uppers, about an hour prior to his arrest, and that earlier during the evening he had smoked marijuana and drunk champagne and beer (Tr. T. 159, 162). He stated that he vomited repeatedly in his cell at the Savannah Police Station and requested medical attention, although none was provided (Tr. T. 172). Appellant recalled neither receiving any Miranda warnings from officers nor making the series of oral and written statements attributed to him (Tr. T. 162, 173). He specifically denied that the signature affixed to State’s Exhibit 14 was his own (Tr. T. 173).

At the opening of his trial, Hugh Lawson, one of the two attorneys appointed by the court to represent appellant, told the court that

“our defense- here is handicapped by the fact that we are evidently altogether out of communication with the defendant himself. He will not communicate with us meaningfully and does not seem to . respond meaningfully to any communication that we make to him.” (Tr. T. 8)

The attorneys stated that they had attempted to speak with appellant on only two occasions prior to the trial, once at the Georgia State Prison in Reidsville, Georgia and the other at the time of appellant’s commitment hearing in Cochran, Georgia (Tr. T. 10-11):

“He did not communicate with us when we did try to communicate with him at Reidsville, and he did not communicate' with us at the court house in Cochran, and he will not communicate with us today. I don’t know what else to say or do about it.” (Tr. T. 11)

The trial court, noting that it had given appellant an opportunity to obtain private counsel, urged appellant to cooperate with his lawyers, and resumed the trial (Tr. T. 13).

Appellant was convicted of murder by the jury; no finding or special verdict was rendered on whether appellant or Claude Sampson had actually fired the shots which killed Roy Asbell.

During the sehtencing phase of the trial, the State offered eight prior convictions (Tr. T. 299). These convictions were offered to prove the aggravating circumstances designated under Ga.Code Ann. § 27-2534.1(b)(1): the “offense of murder ... was committed by a person who had a substantial history of serious assaultive criminal convictions.” Under Georgia law, proof of at least one of the statutory aggravating circumstances is a prerequisite to the imposition of a capital sentence. The court admitted six of the eight prior convictions (Tr. T. 314).

In its brief sentencing charge, which is appended as Appendix A, the trial court instructed the jury that they were “authorized to consider, all of the evidence received in court throughout the trial,.” including “all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment” (Tr. T. 320). The court went on to instruct that “[i]n all cases of Murder for which the death penalty may be authorized the jury shall consider any mitigating circumstances or aggravating circumstances authorized by law” (Tr. T. 321) (emphasis added).

In order to explain the law of aggravating circumstances, the court systematically enumerated three aggravating factors submitted to the jury: (i) that “the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim;” (ii) that “the offense of Murder was committed by a person who had escaped from the lawful custody of a peace officer or a place of lawful confinement;” (iii) that the defendant had a “substantial history of serious assaultive criminal convictions,” or “a prior record of conviction for a Capital felony” (Tr. T. 321). The court explained that “[ujnléss one or more of these statutory aggravating circumstances are proven beyond a. reasonable doubt you will not be authorized to fix punishment at death;” and it told the jury that, if death were fixed, aggravating factors would have to be listed with the verdict (Tr. T. 321-22).

The court, however, did not define the term “mitigating circumstances.” It did not identify any mitigating circumstances as supported by the evidence in the case. It did not explain in any other way how mitigating circumstances were to be evaluated by the jury. Instead, the court stated only that “if you' recommend mercy for the defendant this will result in imprisonment for life of the defendant. In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find____” (Tr. T. 322).

The jury did not find the crime to have been “outrageously wanton, vile or inhumane” but did find the other aggravating circumstances to have been present. It fixed appellant’s sentence at death. On appeal, the Supreme Court of Georgia held that, though one of the two aggravating circumstances found by the jury — -that involving “serious assaultive criminal conviction” — was unconstitutional and should not have been submitted to the jury “[i]n this case, the evidence supports the jury’s findings of the other statutory aggravating circumstances, and consequently the sentence is not impaired.” Stephens v. State, 237 Ga. 259, 227 S.E.2d 261, 263 (1976).

SUMMARY OF ARGUMENT

The record in appellant’s case contains significant federal constitutional issues which, inexplicably, were not raised below but which require corrective action by this Court. Cf. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir.1978).

Appellant’s jury was instructed by the trial court at the sentencing stage that it could consider an aggravating circumstance which was later held unconstitutionally vague. The jury not only considered, but specifically found this circumstance and one other to have been present, and sentenced petitioner to death.

A death sentence based in part upon an unconstitutionally vague aggravating circumstance flatly violates the settled rule against permitting a verdict to stand which may have rested in part upon an unconstitutional statute. Stromberg v. California, 283 U.S. 350 (1931). Appellant’s sentence also fails to satisfy the demand of Gregg v. Georgia, 428 U.S. 153 (1976) and Gardner v. Florida, 430 U.S. 349 (1977) for reliability in capital sentencing since there is no way of determining the effect of arbitrary factors upon the jury’s deliberations and sentence. The Constitution does not permit a person’s life to, be taken under a cloud of uncertainty about the basis for the jury’s decision.

The trial court did not clearly instruct appellant’s jury on its responsibility to consider mitigating circumstances in sentencing appellant, nor did it inform the jury of its option to recommend a sentence of life for appellant even if aggravating circumstances were found in the case. Specifically, the trial court never defined the “mitigating circumstances,” never offered examples of mitigating circumstances and, contrary to state law, did not direct the jury’s attention to specific mitigating circumstances suggested by the evidence. Moreover, the trial court never explained the relationship between aggravating and mitigating circumstances, instead suggesting to the jury that, if aggravating circumstances were found, a death sentence should follow automatically.

Appellant’s sentencing instructions therefore violated the Supreme Court’s express assumption in Gregg v. Georgia, 428 U.S. 153, 197 (1976) that under Georgia’s new capital statutes, the jury’s attention in deliberations on sentence would be focused by the trial court on the characteristics of the defendant. In the absence of such sentencing instructions, appellant’s death sentence cannot stand.

ARGUMENT

Introduction

While amicus believes that the issues briefed by appellant and those that we brief in detail below suffice to establish the invalidity of appellant’s death sentence, this appeal has an extremely troubling feature which we feel obliged to call to the Court’s attention at the outset. Several federal constitutional issues apparent on the face of the state court record have not been presented by appellant’s counsel below or in this Court.

One such issue, for example, requires no elaborate examination of either fact or law; and there appears no reason why it should not have been raised below. Appellant’s death sentence stands on a record on which no factual determination was made that the life of the victim “ha[d] been taken deliberately by the [appellant],” Gregg v. Georgia, 428 U.S. 153, 187 (1976).

While the Supreme Court in Gregg sustained the constitutionality of the penalty of death, it expressly noted that the penalty might nevertheless be constitutionally forbidden if it were “disproportionate in relation to the crime for which it [was] imposed.” Gregg v. Georgia, supra, 428 U.S. at 187. Gregg and its companion cases upheld death sentences as not excessive or disproportionate only “when a life has been taken- deliberately by the offender.” Id. Subsequently, in Coker v. Georgia, 433 U.S. 584 (1977), the Court struck down as disproportionate a death sentence imposed for the crime of rape, which, the Court stated, “does [not] involve the unjustified taking of human life.” Coker v. Georgia, supra, 433 U.S. at 598. The logic of Coker plainly applies to any non-fatal felony. See Eberheart v. Georgia, 433 U.S. 917 (1977) (per curiam) (rape and kidnapping).

The question presented by appellant’s case is whether a death sentence may be imposed for what may have been no more than accessorial liability. If appellant in fact did not participate in the death of the victim, made no decision to kill, or indeed attempted to dissuade his companion from murder, the death penalty would be constitutionally disproportionate and excessive. A defendant who is an accomplice to the murder committed by a co-felon has personal culpability that is no greater than that in Coker. If appellant could not be sentenced to death for the felonies in which he participated — here burglary, armed robbery, kidnapping and motor vehicle theft— it seems inconceivable that he could be constitutionally sentenced to death simply because his companion committed a homicide during the felony.

While this case, unlike Coker, involves a death resulting from the felony, it is settled that the infliction of capital punishment on the basis of the crime alone, without assessing the offender’s individual culpability, ignores considerations that are “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion); see (Harry) Roberts v. Louisiana, 431 U.S. 633, 636-37 (1977) (per curiam); (Stanislaus) Roberts v. Louisiana, 428 U.S. 325, 332-34 (1976) (plurality opinion). The plain import of Woodson and the two Roberts cases is that capital sentencing must depend upon an examination of the individual culpability of the offender; and if his culpability is no greater than Coker’s, infliction of the death penalty on him would be both disproportionate under Coker and would affront the Eighth Amendment’s command that “any decision to impose the death sentence be, and appear to be, based on reason rather than caprice....” Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality opinion).

Under Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir.1978), a remand to the district court on this issue for exhaustion of state remedies is appropriate. At that time, amicus submits, appellant’s death sentence must be vacated and the case remanded to the trial court for a jury finding on the extent of appellant’s personal responsibility for Asbell’s death.

I

APPELLANT’S DEATH SENTENCE, WHICH WAS BASED IN PART ON AN UNCONSTITUTIONALLY VAGUE AGGRAVATING CIRCUMSTANCE, VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS.

In determining appellant’s sentence, the trial jury was instructed by the court to consider the following aggravating circumstances: (i) that the murder was committed by a person with a prior record of conviction for a capital felony or a substantial history of serious assaultive criminal convictions; (ii) that the murder was committed by a person who had escaped from the lawful custody of a peace officer or place of confinement; and (iii) that the offense of murder was outrageously or wantonly vile, horrible or inhuman (Tr. T. 321). The jury found the first two of these circumstances to have been present but rejected the last.

Subsequent to the imposition of the petition’s death sentence, the Georgia Supreme Court concluded that “the portion of Code Ann. § 27-2534.1(b)(1), which allows for the death penalty where a murder [is] committed by a person who has substantial history of serious assaultive convictions is unconstitutional and, thereby, unenforceable.” Arnold v. State, 236 Ga. 534, 224 S.E.2d 386, 392 (1976). Notwithstanding the clear unconstitutionality of one of the predicates for the jury’s verdict in appellant’s case, the Georgia Supreme Court affirmed his death sentence on appeal, concluding that “the evidence supports the jury’s findings of the other statutory aggravating circumstances, and consequently, the sentence is not impaired.” Stephens v. State, supra, 237 S.E.2d at 263.

Appellant alleged below that the death sentence had been based in part on an unconstitutional aggravating circumstance. Without directly addressing this issue, the district court denied the petition.

The disposition of this issue by the Georgia Supreme Court and by the district court below violates a fundamental principle established by repeated decisions of the United States Supreme Court: that whenever a jury has been instructed to consider several grounds for conviction, one of which proves unconstitutional, if a reviewing court is thereafter unable to determine from the record whether the jury relied upon the unconstitutional ground, the verdict must be set aside. Stromberg v. California, 283 U.S. 359, 367-68 (1931); Williams v. North Carolina, 317 U.S. 287, 291-92 (1942); Thomas v. Collins, 323 U.S. 516, 528-29 (1945); Cramer v. United States, 325 U.S. 1, 36 n. 45 (1945); Terminiello v. Chicago, 337 U.S. 1, 5 (1949); Yates v. United States, 354 U.S. 298, 311-12 (1957); Gregory v. Chicago, 394 U.S. 111, 113 (1969); Street v. New York, 394 U.S. 576, 585-88 (1969); Bachellar v. Maryland, 397 U.S. 564, 570-71 (1970). As the Court explained in Street v. New York, supra, 394 U.S. at 587-88:

“[Ejven assuming that the record precludes the inference that appellant’s conviction might have been based solely on [the unconstitutional ground], we are still bound to reverse if the conviction could have been based upon both [the unconstitutional] and [the constitutional ground].

* * sjc * sfc

[U]nless the record negates the possibility that the conviction was based on both ... Thomas [v. Collins, supra] dictates that ‘[t]he judgment .. must be affirmed as to both or as to neither,’ [for otherwise] ... there is an unacceptable danger that the trier of fact will have regarded the two ... as ‘intertwined’ and have rested the conviction on both together.”

This settled principle of law is applicable with particular force in the present case. Appellant’s death sentence has been permitted to stand upon a verdict which no court can satisfactorily determine not to have been decisively affected by an unconstitutional statutory aggravating circumstance. Several factors contribute to the unique harm such a result works in appellant’s case.

First, the trial court’s instructions never advised the jury that its sentence of death had to be unanimously based on any single aggravating circumstance (Tr. T. 320-22). Instead, the jury was merely instructed that in order to return a death verdict it was required to:

“designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you have found to be proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven, beyond a reasonable doubt you will not be authorized to fix punishment at death.”

Although these instructions required proof beyond a reasonable doubt, they did not expressly call for jury unanimity on the circumstances which would warrant a sentence of death. As a result, four of the jury may well have voted for a death sentence on the basis of one aggravating circumstance, four because of two of the aggravating circumstances and the remainder only because all three were present. If, indeed, this were the breakdown of the jurors, then there would not have unanimity for a death sentence without reliance upon the unconstitutionally vague aggravating circumstance.

There is simply no way of knowing the answer in light of the jury’s general verdict of death. The district court’s effort to find certainty where none exists is contrary to the clear mandate of the United States Supreme Court that “[i]n death cases doubts ... should be resolved in favor of the accused.” Andres v. United States, 333 U.S. 740, 752 (1948).

Second, even if unanimity on one of the valid aggravating circumstances could be divined from the general verdict, it would not in itself sustain the jury’s verdict. The jury of necessity had the authority under both Georgia law and under the Constitution (as amicus will demonstrate in Section II, infra) to return a life sentence even if it found statutory aggravating circumstances to exist. There is therefore a real risk that the trial court’s inclusion of the unconstitutional aggravating circumstance in its instructions led the jury to impose a death sentence which, in the absence of this factor, it would not have considered appropriate. “When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Lockett v. Ohio, supra, 438 U.S. at 605.

The Georgia Supreme Court (and the district court) ignored this risk, holding that since one valid aggravating circumstance was present, appellant’s death sentence was proper. This principle of appellate review itself violates Lockett v. Ohio, for it amounts to a conclusive presumption that if a jury has found one valid aggravating circumstance, death must be imposed, despite the fact that the jury, had it not been instructed to consider the unconstitutional circumstance, might itself have chosen not to impose a death sentence. As Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976) establish, a mandatory death sentence which “fail[s] to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death,” Woodson v. North Carolina, supra, 428 U.S. at 303, (emphasis added) is unconstitutional. The Georgia Supreme Court’s automatic affirmance of appellant’s sentence because of the presence of a valid aggravating circumstance denies to appellant any jury consideration of those aggravating and mitigating factors — and only those factors — which should have been before them, replacing the jury’s delicate balancing of factors with an inflexible, per se rule.

Third, the United States Supreme Court sustained the Georgia capital statute in Gregg v. Georgia, 428 U.S. 153 (1976), only on the assumption that the Georgia Supreme Court would review each sentence of death and determine “whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor,” Gregg v. Georgia, supra, 428 U.S. at 204; see id. at 167, 198, 223-24. Since in this case the jury indisputably was instructed upon and found an unconstitutionally vague aggravating circumstance, and since the presence of such a factor injected a degree of impermissible arbitrariness into the proceeding, see Grayned v. Rockford, 408 U.S. 104, 109 (1972); Furman v. Georgia, 408 U.S. 238 (1972), it would appear to follow inexorably that appellant’s death sentence was “imposed under the influence of ... [an] arbitrary factor.”

There is a fourth reason why the Stromberg violation is especially egregious in this case. The underlying flaw in the capital statutes condemned in Furman was that they permitted juries to impose capital sentences in an arbitrary and capricious manner, without any consistent or evenhanded application.

In order for a capital statute to comply with Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court has insisted that it must provide a rational, consistent and reliable process for determining whether the death sentence should be imposed in a particular case. See, e.g., Gregg v. Georgia, supra, 428 U.S. at 188-89; Woodson v. North Carolina, 428 U.S. 280, 304 (1976); Proffitt v. Florida, 428 U.S. 242, 259-60; Jurek v. Texas, 428 U.S. 262, 276 (1978); Lockett v. Ohio, supra, 438 U.S. at 601. As the plurality explained in Gardner v. Florida, 430 U.S. 349, 358 (1977): “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion”.

To ensure that capital sentencing decisions are reached in a rational and consistent manner, the Supreme Court has emphasized that the discretion afforded a sentencing body “must be suitably directed and limited.” Gregg v. Georgia, supra, 428 U.S. at 153.

However, the rationality and reliability of a capital sentencing system are substantially, if not wholly, undermined when, as here, the jury has been instructed on and has relied upon an unconstitutionally vague aggravating circumstance in reaching its decision to impose the death penalty. Such an instruction removes the linchpin of a fair sentencing system, for there is a fundamental contradiction between the Supreme Court’s requirement of guided discretion in death sentence proceedings and a process that would permit the jury to consider an unconstitutionally vague aggravating circumstance. The whole purpose of providing adequate guidance to the jury in the form of instructions on specific aggravating circumstance