NICKS
v.
ALABAMA
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Justice Marshall,
with whom Justice Brennan joins,
dissenting.
I continue to believe that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting). But even if I did not hold this view, I would grant the petition for writ of certiorari and vacate the death sentence in this case, because the sentence was secured in flagrant violation of our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985).
In Caldwell we vacated a sentence of death because the prosecutor “sought to minimize the jury’s sense of the importance of its role” by stressing to the jury that its verdict would be subject to appellate review. Id., at 325. The prosecutor told the jury during the sentencing phase that “your decision is not the final decisi ón. . . . Your job is reviewable.” Ibid. We held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id., at 328-329.
Petitioner’s sentence of death cannot be squared with our decision in Caldwell. The prosecutor in this case made the following argument to the jury at the penalty phase of petitioner’s trial:
“The opinion, which you will come to a conclusion when you go back and deliberate — Let me say this, it will be only an advisory opinion. The law provides for you to present this to the Court for their consideration. The ultimate decisions [sic] rests with Judge Reynolds. He will be the one to take whatever ruling that you send out and decide whether it will be life without parole or death by electrocution in the electric chair.” Pet. for Cert. 3.
This argument, perhaps even more baldly than the statements in Caldwell, sought to minimize the jury’s sense of its awesome responsibility to determine whether petitioner would live or die by encouraging the jury to view its verdict as merely “advisory.” This shifting of the jury’s sense of responsibility to another decisionmaker, as we explained at length in Caldwell, undermines the reliability of the jury’s decision and conditions the jury to return the death penalty. See 472 U. S., at 330-333.
That the prosecutor in this case told the jury that the trial judge would make the ultimate decision, whereas the prosecutor in Caldwell identified the appellate court as the ultimate decisionmaker, is a distinction without a difference. Caldwell makes plain that a death penalty cannot stand where the jury is led to believe that the defendant’s life rests in some other hands. The constitutional infirmity here is thus no different from that in Caldwell, and the sentence of death no less intolerable. I therefore would grant the petition and reverse the judgment of the Supreme Court of Alabama to the extent it sustains the imposition of the death penalty.
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Preston v. State, 607 So. 2d 404 (Fla. 1992)…gest that someone else committed the murder, thereby creating residual doubt about the defendant’s guilt of the crime. Residual doubt is not an appropriate nonstatutory mitigating circumstance. King v. State, 514 So. 2d 354 (Fla.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988). The trial court properly excluded this testimony. Next, Preston argues that the trial court erred in refusing to find the existence of the two statutory mental health mitigating factors. Preston presented ex…
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Foster v. State, 614 So. 2d 455 (Fla. 1992)…oster’s first postconviction motion, and this Court affirmed. Foster v. State, 400 So. 2d 1 (Fla. 1981). In addition, federal courts denied Foster relief on two federal habeas petitions. Foster v. Dugger, 823 F. 2d 402 (11th Cir.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988); Foster v. Strickland, 707 F. 2d 1339 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). In Foster v. State, 518 So. 2d 901 (Fla.1987), cert. denied, 487 U.S. 1240, 108 S.Ct. 2…1 / 2
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Lucas v. State, 568 So. 2d 18 (Fla. 1990)…is given the opportunity to rebut it. Lucas now claims that the state should not be allowed to present hearsay evidence in penalty proceedings. We have rejected similar claims before, Chandler; King v. State, 514 So. 2d 354 (Fla.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988), and do so again here. The instant claim is based on the state’s eliciting from one of its witnesses the victim’s telling him of threats made toward her by Lucas. As the state points out, however, the record…
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- Gregg v. Georgia, 428 U.S. 153 (U.S. 1976)