ZANT v. STEPHENS(1983)

No. 81-89

Argued: February 24, 1982Decided: June 22, 1983

In a bifurcated trial in a Georgia state court, a jury found respondent guilty of murder and imposed the death penalty. At the sentencing phase of the trial, the judge instructed the jury that it was authorized to consider all of the evidence received during the guilt phase of the trial as well as all facts and circumstances presented in mitigation or aggravation during the sentencing proceeding, and that it must find and designate in writing the existence of one or more specified statutory aggravating circumstances in order to impose the death penalty. The jury stated in writing that it found the statutory aggravating circumstances that respondent had a prior conviction of a capital felony, that he had “a substantial history of serious assaultive criminal convictions,” and that the murder was committed by an escapee. While respondent’s appeal was pending, the Georgia Supreme Court held in another case that one of the aggravating circumstances – “substantial history of serious assaultive criminal convictions” – was unconstitutionally vague. In respondent’s case, the Georgia Supreme Court held that the two other aggravating circumstances adequately supported the sentence. After the Federal District Court denied respondent’s petition for habeas corpus, the Court of Appeals held that respondent’s death penalty was invalid. In response to this Court’s certified question, Zant v. Stephens, 456 U.S. 410 , the Georgia Supreme Court explained the state-law premises for its view that the failure of one aggravating circumstance does not invalidate a death sentence that is otherwise adequately supported by other aggravating circumstances. Under Georgia law the finding of a statutory aggravating circumstance serves a limited purpose – it identifies those members of the class of persons convicted of murder who are eligible for the death penalty, without furnishing any further guidance to the jury in the exercise of its discretion in determining whether the death penalty should be imposed.

Held:

[462 U.S. 862, 863]

determination must be made on the basis of the defendant’s character and the circumstances of the crime, and the State Supreme Court reviews the record of every death penalty proceeding to determine whether the sentence was arbitrary or disproportionate. The narrowing function of statutory aggravating circumstances was properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court, because these two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed. Moreover, the Georgia Supreme Court reviewed respondent’s death sentence to determine whether it was arbitrary, excessive, or disproportionate. Thus the Georgia capital sentencing statute is not invalid as applied here. Pp. 873-880.

2. Stromberg v. California, 283 U.S. 359 , does not require that respondent’s death sentence be vacated. Stromberg requires that a general guilty verdict be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. In this case, however, the jury did not merely return a general verdict stating that it had found at least one aggravating circumstance, but instead expressly found two aggravating circumstances that were valid and legally sufficient to support the death penalty. Nor is a second rule derived from Stromberg – requiring that a general guilty verdict on a single-count indictment or information be set aside where it rests on both a constitutional and an unconstitutional ground – applicable here. There is no suggestion that any of the aggravating circumstances involved any conduct protected by the Constitution. Pp. 880-884.

3. Respondent’s death sentence was not impaired on the asserted ground that the jury instruction with regard to the invalid statutory aggravating circumstance may have unduly affected the jury’s deliberations. Although the aggravating circumstance was struck down by the Georgia Supreme Court because it failed to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed, the underlying evidence as to respondent’s history of serious assaultive criminal convictions was fully admissible under Georgia law at the sentencing phase of the trial. Pp. 884-891.

631 F.2d 397 and 648 F.2d 446, reversed.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and O’CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in part and concurring in the judgment, [462 U.S. 862, 864] post, p. 891. REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 893. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 904.

After the Georgia Supreme Court’s response to the certified question, supplemental briefs were filed by Michael J. Bowers, Attorney General of Georgia, William B. Hill, Jr., Senior Assistant Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Marion O. Gordon, First Assistant Attorney General, for petitioner, and by James C. Bonner, Jr., Jack Greenberg, James M. Nabrit III, Joel Berger, John Charles Boger, Deborah Fins, and Anthony G. Amsterdam for respondent.

JUSTICE STEVENS delivered the opinion of the Court.

The question presented is whether respondent’s death penalty must be vacated because one of the three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the Supreme Court of Georgia, although the other two aggravating circumstances were specifically upheld. The answer depends on the function of the jury’s finding of an aggravating circumstance under Georgia’s capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be invalid.

In January 1975 a jury in Bleckley County, Georgia, convicted respondent of the murder of Roy Asbell and sentenced him to death. The evidence received at the guilt phase of his trial, which included his confessions and the testimony of a number of witnesses, described these events: On August 19, 1974, while respondent was serving sentences for several burglary convictions and was also awaiting trial for escape, he again escaped from the Houston County Jail. In the next two days he committed two auto thefts, an armed robbery, and several burglaries. On August 21st, Roy Asbell interrupted respondent and an accomplice in the course of burglarizing the home of Asbell’s son in Twiggs County. Respondent [462 U.S. 862, 865] beat Asbell, robbed him, and, with the aid of the accomplice, drove him in his own vehicle a short distance into Bleckley County. There they killed Asbell by shooting him twice through the ear at point blank range.

At the sentencing phase of the trial the State relied on the evidence adduced at the guilt phase and also established that respondent’s prior criminal record included convictions on two counts of armed robbery, five counts of burglary, and one count of murder. Respondent testified that he was “sorry” and knew he deserved to be punished, that his accomplice actually shot Asbell, and that they had both been “pretty high” on drugs. The State requested the jury to impose the death penalty and argued that the evidence established the aggravating circumstances identified in subparagraphs (b)(1), (b)(7), and (b)(9) of the Georgia capital sentencing statute. 1

The trial judge instructed the jury that under the law of Georgia “every person [found] guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case.” App. 18. He explained that the jury was authorized to consider all of the evidence [462 U.S. 862, 866] received during the trial as well as all facts and circumstances presented in extenuation, mitigation, or aggravation during the sentencing proceeding. He then stated:

The jury followed the court’s instruction and imposed the death penalty. It designated in writing that it had found the aggravating circumstances described as “One” and “Three” in the judge’s instruction. 3 It made no such finding with respect [462 U.S. 862, 867] to “Two.” 4 It should be noted that the jury’s finding under “One” encompassed both alternatives identified in the judge’s instructions and in subsection (b)(1) of the statute – that respondent had a prior conviction of a capital felony and that he had a substantial history of serious assaultive convictions. These two alternatives and the finding that the murder was committed by an escapee are described by the parties as the three aggravating circumstances found by the jury, but they may also be viewed as two statutory aggravating circumstances, one of which rested on two grounds.

In his direct appeal to the Supreme Court of Georgia respondent did not challenge the sufficiency of the evidence supporting the aggravating circumstances found by the jury. Nor did he argue that there was any infirmity in the statutory definition of those circumstances. While his appeal was pending, however, the Georgia Supreme Court held in Arnold v. State, 236 Ga. 534, 539-542, 224 S. E. 2d 386, 391-392 (1976), that the aggravating circumstance described in the second clause of (b)(1) – “a substantial history of serious assaultive criminal convictions” – was unconstitutionally vague. 5 Because such a finding had been made by the jury in this case, the Georgia Supreme Court, on its own motion, [462 U.S. 862, 868] considered whether it impaired respondent’s death sentence. It concluded that the two other aggravating circumstances adequately supported the sentence. Stephens v. State, 237 Ga. 259, 261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U.S. 986 (1976). The state court reaffirmed this conclusion in a subsequent appeal from the denial of state habeas corpus relief. Stephens v. Hopper, 241 Ga. 596, 603-604, 247 S. E. 2d 92, 97-98, cert. denied, 439 U.S. 991 (1978). 6

After the Federal District Court had denied a petition for habeas corpus, the United States Court of Appeals for the Fifth Circuit considered two constitutional challenges to respondent’s death sentence. 631 F.2d 397 (1980). That court first rejected his contention that the jury was not adequately instructed that it was permitted to impose life imprisonment rather than the death penalty even if it found an aggravating circumstance. 7 The court then held, however, that the death penalty was invalid because one of the aggravating circumstances found by the jury was later held unconstitutional.

The Court of Appeals gave two reasons for that conclusion. First, it read Stromberg v. California, 283 U.S. 359 (1931), as requiring that a jury verdict based on multiple grounds be set aside if the reviewing court cannot ascertain [462 U.S. 862, 869] whether the jury relied on an unconstitutional ground. The court concluded:

“It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground.” 631 F.2d, at 406.

Second, it believed that the presence of the invalid circumstance “made it possible for the jury to consider several prior convictions of [respondent] which otherwise would not have been before it.” Ibid.

In a petition for rehearing, the State pointed out that the evidence of respondent’s prior convictions would have been admissible at the sentencing hearing even if it had not relied on the invalid circumstance. 8 The Court of Appeals then modified its opinion by deleting its reference to the possibility that the jury had relied on inadmissible evidence. 648 F.2d 446 (1981). It maintained, however, that the reference in the instructions to the invalid circumstance “may have unduly directed the jury’s attention to his prior convictions.” Ibid. The court concluded: “It cannot be determined with the degree of certainty required in capital cases that the instruction did not make a critical difference in the jury’s decision to impose the death penalty.” Ibid. [462 U.S. 862, 870]

We granted Warden Zant’s petition for certiorari, 454 U.S. 814 (1981). The briefs on the merits revealed that different state appellate courts have reached varying conclusions concerning the significance of the invalidation of one of multiple aggravating circumstances considered by a jury in a capital case. 9 Although the Georgia Supreme Court had consistently stated that the failure of one aggravating circumstance does not invalidate a death sentence that is otherwise adequately supported, 10 we concluded that an exposition of the state-law premises for that view would assist in framing the precise federal constitutional issues presented by the Court of Appeals’ holding. We therefore sought guidance from the Georgia Supreme Court pursuant to Georgia’s statutory certification procedure. Ga. Code 24-4536 (Supp. 1980). Zant v. Stephens, 456 U.S. 410 (1982). 11

In its response to our certified question, the Georgia Supreme Court first distinguished Stromberg as a case in which the jury might have relied exclusively on a single invalid ground, noting that the jury in this case had expressly relied on valid and sufficient grounds for its verdict. The court then explained the state-law premises for its treatment of aggravating circumstances by analogizing the entire body of Georgia law governing homicides to a pyramid. It explained:

[462 U.S. 862, 871]

perpetrator increase in severity as the cases proceed from the base to the apex, with the death penalty applying only to those few cases which are contained in the space just beneath the apex. To reach that category a case must pass through three planes of division between the base and the apex.

“The first plane of division above the base separates from all homicide cases those which fall into the category of murder. This plane is established by the legislature in statutes defining terms such as murder, voluntary manslaughter, involuntary manslaughter, and justifiable homicide. In deciding whether a given case falls above or below this plane, the function of the trier of facts is limited to finding facts. The plane remains fixed unless moved by legislative act.

“The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances. The function of the factfinder is again limited to making a determination of whether certain facts have been established. Except where there is treason or aircraft hijacking, a given case may not move above this second plane unless at least one statutory aggravating circumstance exists. Code Ann. 27-2534.1(c).

[462 U.S. 862, 872]

or any other arbitrary factor; whether the statutory aggravating circumstances are supported by the evidence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Code Ann. 27-2537. Performance of this function may cause this court to remove a case from the death penalty category but can never have the opposite result.

“The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder’s discretion. Unless at least one of the ten statutory aggravating circumstances exists, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason. Waters v. State, 248 Ga. 355, 369, 283 S. E. 2d 238 (1981); Hawes v. State, 240 Ga. 327, 334, 240 S. E. 2d 833 (1977); Fleming v. State, 240 Ga. 142, 240 S. E. 2d 37 1977). In making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant.

[462 U.S. 862, 873]

The Georgia Supreme Court then explained why the failure of the second ground of the (b)(1) statutory aggravating circumstance did not invalidate respondent’s death sentence. It first noted that the evidence of respondent’s prior convictions had been properly received and could properly have been considered by the jury. The court expressed the opinion that the mere fact that such evidence was improperly designated “statutory” had an “inconsequential impact” on the jury’s death penalty decision. Finally, the court noted that a different result might be reached if the failed circumstance had been supported by evidence not otherwise admissible or if there was reason to believe that, because of the failure, the sentence was imposed under the influence of an arbitrary factor. Id., at 100, 297 S. E. 2d, at 4.

We are indebted to the Georgia Supreme Court for its helpful response to our certified question. That response makes it clear that we must confront three separate issues in order to decide this case. First, does the limited purpose served by the finding of a statutory aggravating circumstance in Georgia allow the jury a measure of discretion that is forbidden by Furman v. Georgia, 408 U.S. 238 (1972), and subsequent cases? Second, has the rule of Stromberg v. California, 283 U.S. 359 (1931), been violated? Third, in this case, even though respondent’s prior criminal record was properly admitted, does the possibility that the reference to the invalid statutory aggravating circumstance in the judge’s instruction affected the jury’s deliberations require that the death sentence be set aside? We discuss these issues in turn.

I

In Georgia, unlike some other States, 12 the jury is not instructed to give any special weight to any aggravating circumstance, [462 U.S. 862, 874] to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty. For this reason, respondent argues that Georgia’s statutory scheme is invalid under the holding in Furman v. Georgia.

A fair statement of the consensus expressed by the Court in Furman is that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). After thus summarizing the central mandate of Furman, the joint opinion in Gregg set forth a general exposition of sentencing procedures that would satisfy the concerns of Furman. 428 U.S., at 189 -195. But it expressly stated: “We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these [462 U.S. 862, 875] general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis.” Id., at 195. The opinion then turned to specific consideration of the constitutionality of Georgia’s capital sentencing procedures. Id., at 196-207.

Georgia’s scheme includes two important features which the joint opinion described in its general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia has a bifurcated procedure, see id., at 190-191, and its statute also mandates meaningful appellate review of every death sentence, see id., at 195. The statute does not, however, follow the Model Penal Code’s recommendation that the jury’s discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. See id., at 193. Instead, as the Georgia Supreme Court has unambiguously advised us, the aggravating circumstance merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty.

Respondent argues that the mandate of Furman is violated by a scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute. But that argument could not be accepted without overruling our specific holding in Gregg. For the Court approved Georgia’s capital sentencing statute even though it clearly did not channel the jury’s discretion by enunciating specific standards to guide the jury’s consideration of aggravating and mitigating circumstances. 13 [462 U.S. 862, 876]

The approval of Georgia’s capital sentencing procedure rested primarily on two features of the scheme: that the jury was required to find at least one valid statutory aggravating circumstance and to identify it in writing, and that the State Supreme Court reviewed the record of every death penalty proceeding to determine whether the sentence was arbitrary or disproportionate. These elements, the opinion concluded, adequately protected against the wanton and freakish imposition of the death penalty. 14 This conclusion rested, of course, on the fundamental requirement that each statutory aggravating circumstance must satisfy a constitutional standard derived from the principles of Furman itself. For a system [462 U.S. 862, 877] “could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” 428 U.S., at 195 , n. 46. To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. 15 [462 U.S. 862, 878]

Thus in Godfrey v. Georgia, 446 U.S. 420 (1980), the Court struck down an aggravating circumstance that failed to narrow the class of persons eligible for the death penalty. Justice Stewart’s opinion for the plurality concluded that the aggravating circumstance described in subsection (b)(7) of the Georgia statute, as construed by the Georgia Supreme Court, failed to create any “inherent restraint on the arbitrary and capricious infliction of the death sentence,” because a person of ordinary sensibility could find that almost every murder fit the stated criteria. Id., at 428-429. 16 Moreover, the facts of the case itself did not distinguish the murder from any other murder. The plurality concluded that there was “no principled way to distinguish this case, in which the death penalty was imposed, from the many in which it was not.” Id., at 433.

Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. 17 [462 U.S. 862, 879] What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. See Eddings v. Oklahoma, 455 U.S. 104, 110 -112 (1982); Lockett v. Ohio, 438 U.S. 586, 601 -605 (1978) (plurality opinion); Roberts (Harry) v. Louisiana, 431 U.S. 633, 636 -637 (1977); Gregg, 428 U.S., at 197 (opinion of Stewart, POWELL, and STEVENS, JJ.); Proffitt v. Florida, 428 U.S., at 251 -252 (opinion of Stewart, POWELL, and STEVENS, JJ.); Woodson v. North Carolina, 428 U.S. 280, 303 -304 (1976) (plurality opinion). 18

The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. We therefore remain convinced, as we were in 1976, that the structure of the statute is constitutional. Moreover, the narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court – that respondent had escaped from lawful confinement, and that he had a prior record of conviction for a capital felony. These two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed. Moreover, the Georgia Supreme Court in this case reviewed the death sentence to determine whether it was arbitrary, excessive, or disproportionate. 19 [462 U.S. 862, 880] Thus the absence of legislative or court-imposed standards to govern the jury in weighing the significance of either or both of those aggravating circumstances does not render the Georgia capital sentencing statute invalid as applied in this case.

II

Respondent contends that under the rule of Stromberg v. California, 283 U.S. 359 (1931), and subsequent cases, the invalidity of one of the statutory aggravating circumstances underlying the jury’s sentencing verdict requires that its entire death sentence be set aside. In order to evaluate this contention, it is necessary to identify two related but different rules that have their source in the Stromberg case.

In Stromberg, a member of the Communist Party was convicted of displaying a red flag in violation of the California Penal Code. The California statute prohibited such a display (1) as a “sign, symbol or emblem” of opposition to organized government; (2) as an invitation or stimulus to anarchistic action; or (3) as an aid to seditious propaganda. This Court held that the first clause of the statute was repugnant to the Federal Constitution and found it unnecessary to pass on the validity of the other two clauses because the jury’s guilty verdict might have rested exclusively on a conclusion that Stromberg had violated the first. The Court explained: [462 U.S. 862, 881]

“The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause.” Id., at 367-368.

“The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” Id., at 369-370.

One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. The cases in which this rule has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jury’s decision rested. See, e. g., Williams v. North Carolina, 317 U.S. 287, 292 (1942); Cramer v. United States, 325 U.S. 1, 36 , n. 45 (1945); Terminiello v. Chicago, 337 U.S. 1, 5 -6 (1949); Yates v. United States, 354 U.S. 298, 311 -312 (1957). This rule does not require that respondent’s death sentence be vacated, because the jury did not merely return a general verdict stating that it had found at least one aggravating circumstance. The jury expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty.

The second rule derived from the Stromberg case is illustrated by Thomas v. Collins, 323 U.S. 516, 528 -529 (1945), and Street v. New York, 394 U.S. 576, 586 -590 (1969). In [462 U.S. 862, 882] those cases we made clear that the reasoning of Stromberg encompasses a situation in which the general verdict on a single-count indictment or information rested on both a constitutional and an unconstitutional ground. In Thomas v. Collins, a labor organizer’s contempt citation was predicated both upon a speech expressing a general invitation to a group of nonunion workers, which the Court held to be constitutionally protected speech, and upon solicitation of a single individual. The Court declined to consider the State’s contention that the judgment could be sustained on the basis of the individual solicitation alone, 20 for the record showed that the penalty had been imposed on account of both solicitations. “The judgment therefore must be affirmed as to both or as to neither.” 323 U.S., at 529 . Similarly, in Street, the record indicated that petitioner’s conviction on a single-count indictment could have been based on his protected words as well as on his arguably unprotected conduct, flag burning. We stated that, “unless the record negates the possibility that the conviction was based on both alleged violations,” the judgment could not be affirmed unless both were valid. 394 U.S., at 588 .

The Court’s opinion in Street explained:

[462 U.S. 862, 883]

hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of these counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others.” Ibid. (footnote omitted).

The rationale of Thomas and Street applies to cases in which there is no uncertainty about the multiple grounds on which a general verdict rests. If, under the instructions to the jury, one way of committing the offense charged is to perform an act protected by the Constitution, the rule of these cases requires that a general verdict of guilt be set aside even if the defendant’s unprotected conduct, considered separately, would support the verdict. It is a difficult theoretical question whether the rule of Thomas and Street applies to the Georgia death penalty scheme. The jury’s imposition of the death sentence after finding more than one aggravating circumstance is not precisely the same as the jury’s verdict of guilty on a single-count indictment after finding that the defendant has engaged in more than one type of conduct encompassed by the same criminal charge, because a wider range of considerations enters into the former determination. On the other hand, it is also not precisely the same as the imposition of a single sentence of imprisonment after guilty verdicts on each of several separate counts in a multiple-count indictment, 21 because the qualitatively different sentence of death is imposed only after a channeled sentencing procedure. We need not answer this question here. The second rule derived from Stromberg, embodied in Thomas and Street, applies only in cases in which the State has based its prosecution, [462 U.S. 862, 884] at least in part, on a charge that constitutionally protected activity is unlawful. No such charge was made in respondent’s sentencing proceeding.

In Stromberg, Thomas, and Street, the trial courts’ judgments rested, in part, on the fact that the defendant had been found guilty of expressive activity protected by the First Amendment. In contrast, in this case there is no suggestion that any of the aggravating circumstances involved any conduct protected by the First Amendment or by any other provision of the Constitution. Accordingly, even if the Stromberg rules may sometimes apply in the sentencing context, a death sentence supported by at least one valid aggravating circumstance need not be set aside under the second Stromberg rule simply because another aggravating circumstance is “invalid” in the sense that it is insufficient by itself to support the death penalty. In this case, the jury’s finding that respondent was a person who has a “substantial history of serious assaultive criminal convictions” did not provide a sufficient basis for imposing the death sentence. But it raised none of the concerns underlying the holdings in Stromberg, Thomas, and Street, for it did not treat constitutionally protected conduct as an aggravating circumstance.

III

Two themes have been reiterated in our opinions discussing the procedures required by the Constitution in capital sentencing determinations. On the one hand, as the general comments in the Gregg joint opinion indicated, 428 U.S., at 192 -195, and as THE CHIEF JUSTICE explicitly noted in Lockett v. Ohio, 438 U.S., at 605 (plurality opinion), there can be “no perfect procedure for deciding in which cases governmental authority should be used to impose death.” See also Beck v. Alabama, 447 U.S. 625, 638 , n. 13 (1980). On the other hand, because there is a qualitative difference between death and any other permissible form of punishment, “there is a corresponding difference in the need for reliability [462 U.S. 862, 885] in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S., at 305 . “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 or emotion.” Gardner v. Florida, 430 U.S. 349, 358 (1977). Thus, although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.

Respondent contends that the death sentence was impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a “substantial history of serious assaultive criminal convictions,” for these instructions may have affected the jury’s deliberations. In analyzing this contention it is essential to keep in mind the sense in which that aggravating circumstance is “invalid.” It is not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. Georgia has not, for example, sought to characterize the display of a red flag, cf. Stromberg v. California, the expression of unpopular political views, cf. Terminiello v. Chicago, 337 U.S. 1 (1949), or the request for trial by jury, cf. United States v. Jackson, 390 U.S. 570 (1968), as an aggravating circumstance. Nor has Georgia attached the “aggravating” label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant, cf. Herndon v. Lowry, 301 U.S. 242 (1937), or to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant’s mental illness. Cf. Miller v. Florida, 373 So.2d 882, 885-886 (Fla. 1979). If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury’s decision to impose death be set aside. [462 U.S. 862, 886]

But the invalid aggravating circumstance found by the jury in this case was struck down in Arnold because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. See nn. 5 and 16, supra. The underlying evidence is nevertheless fully admissible at the sentencing phase. As we noted in Gregg, 428 U.S., at 163 , the Georgia statute provides that, at the sentencing hearing, the judge or jury

We expressly rejected petitioner’s objection to the wide scope of evidence and argument allowed at presentence hearings.

[462 U.S. 862, 887]

when it makes the sentencing decision.” 428 U.S., at 203 -204.

See id., at 206-207; see also n. 17, supra.

Thus, any evidence on which the jury might have relied in this case to find that respondent had previously been convicted of a substantial number of serious assaultive offenses, as he concedes he had been, was properly adduced at the sentencing hearing and was fully subject to explanation by the defendant. 23 Cf. Gardner v. Florida, supra (requiring that the defendant have the opportunity to rebut evidence and State’s theory in sentencing proceeding); Presnell v. Georgia, 439 U.S. 14, 16 , n. 3 (1978) (same). 24 This case involves a statutory aggravating circumstance, invalidated by the State Supreme Court on grounds of vagueness, whose terms plausibly described aspects of the defendant’s background that were properly before the jury and whose accuracy was unchallenged. Hence the erroneous instruction does not implicate [462 U.S. 862, 888] our repeated recognition that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S., at 604 (opinion of BURGER, C. J.).

Although the Court of Appeals acknowledged on rehearing that the evidence was admissible, it expressed the concern that the trial court’s instructions “may have unduly directed the jury’s attention to his prior conviction.” 648 F.2d, at 446. But, assuming that the instruction did induce the jury to place greater emphasis upon the respondent’s prior criminal record than it would otherwise have done, the question remains whether that emphasis violated any constitutional right. In answering this question, it is appropriate to compare the instruction that was actually given, see supra, at 866, with an instruction on the same subject that would have been unobjectionable. Cf. Henderson v. Kibbe, 431 U.S. 145, 154 -157 (1977). Nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant’s prior criminal record in making its sentencing determination, see n. 17, supra, even though the defendant’s prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence. There would have been no constitutional infirmity in an instruction stating, in substance: “If you find beyond a reasonable doubt that the defendant is a person who has previously been convicted of a capital felony, or that he has escaped from lawful confinement, you will be authorized to impose the death sentence, and in deciding whether or not that sentence is appropriate you may consider the remainder of his prior criminal record.”

The effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label “aggravating circumstance.” That label arguably might have caused the jury to give somewhat greater weight to respondent’s prior criminal record than it otherwise would have given. But we do not think the Georgia Supreme [462 U.S. 862, 889] Court erred in its conclusion that the “mere fact that some of the aggravating circumstances presented were improperly designated `statutory'” had “an inconsequential impact on the jury’s decision regarding the death penalty.” 250 Ga., at 100, 297 S. E. 2d, at 4. The instructions, see supra, at 866, did not place particular emphasis on the role of statutory aggravating circumstances in the jury’s ultimate decision. Instead the trial court instructed the jury to “consider all of the evidence received in court throughout the trial before you” and to “consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense.” App. 18. More importantly, for the reasons discussed above, any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process. 25 [462 U.S. 862, 890]

Our decision in this case depends in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality. 26 We accept that court’s view that the subsequent invalidation of one of several statutory aggravating circumstances does not automatically require reversal of the death penalty, having been assured that a death sentence will be set aside if the invalidation of an aggravating circumstance makes the penalty arbitrary or capricious. 250 Ga., at 101, 297 S. E. 2d, at 4. The Georgia Supreme Court, in its response to our certified question, expressly stated: “A different result might be reached in a case where evidence was submitted in support of a statutory aggravating circumstance which was not otherwise admissible, and thereafter the circumstance failed.” Ibid. As we noted in Gregg, 428 U.S., at 204 -205, we have also been assured that a death sentence will be vacated if it is excessive or substantially disproportionate to the penalties that have been imposed under similar circumstances.

Finally, we note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is “invalid” under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty. See n. 12, supra. As we have discussed, see supra, at 873-880, the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances, and Georgia has not adopted such a system. [462 U.S. 862, 891] Under Georgia’s sentencing scheme, and under the trial judge’s instructions in this case, no suggestion is made that the presence of more than one aggravating circumstance should be given special weight. Whether or not the jury had concluded that respondent’s prior record of criminal convictions merited the label “substantial” or the label “assaultive,” the jury was plainly entitled to consider that record, together with all of the other evidence before it, in making its sentencing determination.

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No. 81-89

Argued: February 24, 1982Decided: June 22, 1983

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No. 81-89

Argued: February 24, 1982Decided: June 22, 1983

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