Clemons v. State

For the Court:

Clemons was convicted of capital murder and sentenced to death by a Harrison County jury on change of venue from the Warren County Circuit Court. His conviction and sentence were affirmed by this Court. Clemons v. State, 535 So.2d 1354 (Miss.1988).

On appeal, this Court noted that Clemons had offered no objection to the aggravating circumstance “especially heinous, atrocious, or cruel” and that the issue was not assigned as error on appeal; however, in light of Maynard v. Cartwright, this Court considered the question as part of its responsibility under Miss. Code Ann. § 99-19-105 (Supp.1988), to review death penalty sentences. Clemons v. State, 535 So.2d at 1362. In so doing, this Court recognized that the “especially heinous, atrocious or cruel” aggravating circumstance, without limiting instruction, is unconstitutionally vague and is, therefore, an invalid aggravating circumstance. Even so, this Court distinguished Maynard v. Cartwright on several grounds and upheld the death penalty.

The United States Supreme Court granted certiorari review on the issue of whether or not this Court properly upheld the sentence of death in light of its finding that one of the two aggravating circumstances, “especially heinous, atrocious or cruel,” was invalid, pursuant to Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The United States Supreme Court held:

Although we hold that the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless error review, we vacate the judgment below and remand, because it is unclear whether the Mississippi Supreme Court correctly employed either of these methods.

Clemons v. Mississippi, 494 U.S. 738, 741, 110 S.Ct. 1441, 1444, 108 L.Ed.2d 725, 733 (1990).

THE ISSUES ON REMAND

A.

REWEIGHING

The United States Supreme Court has now settled the question from a federal constitutional standpoint of a state appellate court’s ability to reweigh aggravating and mitigating circumstances in order to uphold a death sentence based in part on an invalid or improperly defined aggravating circumstance. It has delineated, both in Clemons and in Parker v. Dugger, — U.S. -, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), the process by which appellate courts must arrive at such a decision. However, preliminary to any attempt we make on remand to clarify our analysis in upholding the death sentence, we must decide, as a matter of state law, our authority to reweigh aggravating and mitigating circumstances in order to uphold a death sentence which is based in part upon an improperly defined aggravating circumstance.

Miss.Code Ann. § 99-19-101 (Supp.1991), sets forth the process for a sentencing hearing and deliberation. Foremost in our consideration is that by statute the jury must impose the death penalty. Section 99-19-101(3) states: “If the jury does not make the findings requiring the death sentence the court shall impose a sentence of life imprisonment.” Further, § 99-19-103 (Supp.1991), addresses the “effect of jury’s failure to agree on punishment,” with these words: “If the jury cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment for life.”

Finally, § 99-19-105 (Supp.1991) provides for “Review by supreme court of imposition of death penalty,” and mandates that this Court shall review every death sentence whether or not a direct appeal is taken, § 99-19-105(6), and requires that this Court determine:

(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;

(b) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; and

(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

§ 99-19-105(3).

From these statutory provisions, two things are clear: only the jury, by unanimous decision, can impose the death penalty; as to aggravating circumstances, this Court only has the authority to determine whether .the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance. There is no authority for this Court to reweigh remaining aggravating circumstances when it finds one or more to be invalid or improperly defined, nor is there authority for this Court to find evidence to support a proper definition of an aggravating circumstance in order to uphold a death sentence by reweighing. Finding aggravating and mitigating circumstances, weighing them, and ultimately imposing a death sentence are, by statute, left to a properly instructed jury.

We acknowledge, as the United States Supreme Court recognized in its opinion, that this Court has upheld death sentences in the face of an invalid aggravating circumstance. See, e.g. Nixon v. State, 533 So.2d 1078, 1099 (Miss.1988); Lanier v. State, 533 So.2d 473, 491 (Miss.1988); Faraga v. State, 514 So.2d 295, 309 (Miss.1987); Johnson v. State, 511 So.2d 1333, 1337 (Miss.1987); Stringer v. State, 500 So.2d 928, 945 (Miss.1986); Wiley v. State, 484 So.2d 339, 351 (Miss.1986); Irving v. State, 498 So.2d 305, 314 (Miss.1986); Edwards v. State, 441 So.2d 84, 92 (Miss.1983). However, these cases express the notion, based on Zant v. Stephens, 462 U.S. 862, 880-84, 103 S.Ct. 2733, 2744-46, 77 L.Ed.2d 235, 252-54 (1983), that so long as there remains even one valid aggravating circumstance this Court can uphold the death sentence. The United States Supreme Court has now unequivocally established in Clemons that an “automatic rule of affirmance in a weighing State would be invalid....” 494 U.S. at 752, 110 S.Ct. at 1450, 108 L.Ed.2d at 740.

In the more recent case of Johnson v. State, 547 So.2d 59, 60 (Miss.1989), we claimed that this Court can make the decision as to whether or not to uphold a death sentence without remanding to the trial court for a jury finding. Our opinion is not clear as to whether or not we made this claim with regard to our authority as a matter of state law to reweigh or with regard to our ability to conduct a harmless error analysis. In the end, we determined that where two of three aggravating circumstances were found invalid, a jury should reconsider Johnson’s sentence. Id. at 61. Any indication or implication we may have given in Johnson as to our authority under state law to reweigh in the face of an invalid or improperly defined aggravating circumstance in order to uphold a death sentence is hereby overruled.

B.

HARMLESS ERROR ANALYSIS

The United States Supreme Court’s Clemons opinion alternatively suggests that even if weighing aggravating circumstances against mitigating circumstances were not an appellate function, “it was open to the Mississippi Supreme Court to find that the error which occurred during the sentencing proceeding was harmless,” relying on Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). 494 U.S. at 752, 110 S.Ct. at 1450, 108 L.Ed.2d at 741. The Court pointed to this language in our Clemons opinion: “We likewise are of the opinion beyond a reasonable doubt that the jury’s verdict would have been the same with or without the ‘especially heinous, atrocious or cruel’ aggravating circumstances.” 535 So.2d at 1364. While agreeing that “beyond a reasonable doubt” was the appropriate standard for finding harmless error, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the United States Supreme Court took this statement to mean that this Court threw out the “especially heinous” aggravating circumstance and balanced the one remaining aggravating circumstance against the mitigating circumstances; again, while agreeing that this approach would be permissible, the Court found our ultimate conclusion “very difficult to accept” for the reason that the State almost entirely argued “especially heinous, atrocious, or cruel” during the sentencing hearing, and hardly argued “in the course of a robbery for pecuniary gain” at all. 494 U.S. at 753, 110 S.Ct. at 1451, 108 L.Ed.2d at 741. Without a detailed explanation, the Court could not accept our harmless error analysis.

Assuming that in our original Clemons opinion we were clearly engaged in a harmless error analysis, it is difficult to accept that beyond a reasonable doubt the jury’s sentencing verdict would have been the same with or without the “especially heinous” factor. This factor was argued almost exclusively to the jury as a reason to impose the death penalty. As in Johnson v. State, 547 So.2d 59 (Miss.1989), there is no way to throw out this aggravating circumstance and say with any confidence that the jury verdict would have been the same.

However, the United States Supreme Court did leave open the possibility that this Court “intended to ask whether beyond reasonable doubt the result would have been the same had the especially heinous aggravating circumstance been properly defined in the jury instructions; and perhaps on this basis it could have determined that the failure to instruct properly was harmless error.” 494 U.S. at 754, 110 S.Ct. at 1451, 108 L.Ed.2d at 742. This statement indicates that if this Court applied the Coleman construction to the “especially heinous” factor and then found that with the narrowed definition the jury verdict would have been the same, then we could have perhaps found that failure to properly instruct the jury was harmless error.

We are not convinced beyond a reasonable doubt that under the facts of this case a jury would have found that “the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Coleman v. State, 378 So.2d 640, 648 (Miss.1979).

CONCLUSION

Because we have no authority as a matter of state law to engage in a reweighing analysis, and because under the facts of this case we eschew harmless error analysis, we hold that it is for a jury, rather than this Court, to decide under the facts of this case and with proper and properly defined aggravating circumstances, weighed against mitigating circumstances, whether Clemons shall be sentenced to death or life imprisonment.

This cause is remanded to the Circuit Court of Warren County to impanel another sentencing jury to consider punishment in this case.

REMANDED TO WARREN COUNTY CIRCUIT COURT FOR RESENTENC-ING.

DAN M. LEE, P.J., and PRATHER, ROBERTSON, BANKS and McRAE, JJ., concur.

ROY NOBLE LEE, C.J., dissents with separate written opinion joined by HAWKINS, P.J.

PITTMAN, J., not participating.