Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/schaz.asc

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Subject:  SCHAD v. ARIZONA, Syllabus

 NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the
time the opinion is issued.  The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader.  See United States
v. Detroit Lumber Co., 200 U. S. 321, 337.  SUPREME COURT OF THE
UNITED STATES


Syllabus


SCHAD v. ARIZONA


certiorari to the supreme court of arizona

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

After he was found with a murder victim's vehicle and other
belongings, petitioner Schad was indicted for first-degree
murder.  At trial, the prosecutor advanced both premeditated and
felony murder theories, against which Schad claimed that the
circumstantial evidence proved at most that he was a thief, not a
murderer.  The court refused Schad's request for an instruction
on theft as a lesser included offense, but charged the jury on
second-degree murder.  The jury convicted him of first-degree
murder, and he was sentenced to death.  The State Supreme Court
affirmed, rejecting Schad's contention that the trial court erred
in not requiring the jury to agree on a single theory of
first-degree murder.  The court also rejected Schad's argument
that Beck v. Alabama, 447 U. S. 625, required an instruction on
the lesser included offense of robbery.

Held: The judgment is affirmed.

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

 Justice Souter delivered the opinion of the Court with
respect to Part III, concluding that Beck v. Alabama, 447 U. S.
625 -- which held unconstitutional a state statute prohibiting
lesser included offense instructions in capital cases -- did not
entitle Schad to a jury instruction on robbery.  Beck was based
on the concern that a jury convinced that the defendant had
committed some violent crime but not convinced that he was guilty
of a capital offense might nonetheless vote for a capital
conviction if the only alternative was to set him free with no
punishment at all.  See id., at 629, 630, 632, 634, 637, 642-643,
and n.19. This concern simply is not implicated here, since the
jury was given the "third option" of finding Schad guilty of a
lesser included noncapital offense, second-degree murder.  It
would be irrational to assume that the jury chose capital murder
rather than second-degree murder as its means of keeping a robber

off the streets, and, thus, the trial court's choice of
instructions sufficed to ensure the verdict's reliability.  Pp.
19-22.

 Justice Souter, joined by The Chief Justice, Justice
O'Connor, and Justice Kennedy, concluded in Part II that
Arizona's characterization of first-degree murder as a single
crime as to which a jury need not agree on one of the alternative
statutory theories of premeditated or felony murder is not
unconstitutional.  Pp. 4-19.

 (a) The relevant enquiry is not, as Schad argues, whether
the Constitution requires a unanimous jury in state capital
cases.  Rather, the real question here is whether it was
constitutionally acceptable to permit the jury to reach one
verdict based on any combination of the alternative findings.
Pp. 4-5.

 (b) The long-established rule that a jury need not agree
on which overt act, among several, was the means by which a crime
was committed, provides a useful analogy.  Nevertheless, the Due
Process Clause does place limits on a State's capacity to define
different states of mind as merely alternative means of
committing a single offense; there is a point at which
differences between those means become so important that they may
not reasonably be viewed as alternatives to a common end, but
must be treated as differentiating between what the Constitution
requires to be treated as separate offenses subject to separate
jury findings.  Pp. 5-11.

 (c) It is impossible to lay down any single test for
determining when two means are so disparate as to exemplify two
inherently separate offenses.  Instead, the concept of due
process, with its demands for fundamental fairness and for the
rationality that is an essential component of that fairness, must
serve as the measurement of the level of definitional and verdict
specificity permitted by the Constitution.  P.  11.

 (d) The relevant enquiry must be undertaken with a
threshold presumption of legislative competence.  Decisions about
what facts are material and what are immaterial, or, in terms of
In re Winship, 397 U. S.  358, 364, what "fact[s] [are] necessary
to constitute the crime," and therefore must be proved
individually, and what facts are mere means, represent value
choices more appropriately made in the first instance by a
legislature than by a court.  There is support for such restraint
in this Court's "burden-shifting" cases, which have made clear,
in a slightly different context, that the States must be
permitted a degree of flexibility in determining what facts are
necessary to constitute a particular offense within the meaning
of Winship.  See, e. g., Patterson v.  New York, 432 U. S. 197,
201-202, 210.  Pp. 11-13.

 (e) In translating the due process demands for fairness
and rationality into concrete judgments about the adequacy of
legislative determinations, courts should look both to history
and widely shared state practice as guides to fundamental values.
See, e. g., id., at 202.  Thus it is significant here that
Arizona's equation of the mental states of premeditated and
felony murder as a species of the blameworthy state of mind
required to prove a single offense of first-degree murder finds
substantial historical and contemporary echoes.  See, e. g.,
People v.  Sullivan, 173 N. Y. 122, 127, 65 N. E. 989, 989-990;
State v. Buckman, 237 Neb. 936, --- N. W. 2d ---.  Pp. 13-17.

 (f) Whether or not everyone would agree that the mental
state that precipitates death in the course of robbery is the
moral equivalent of premeditation, it is clear that such
equivalence could reasonably be found.  See Tison v. Arizona, 481
U. S. 137, 157-158.  This is enough to rule out the argument that
a moral disparity bars treating the two mental states as
alternative means to satisfy the mental element of a single
offense.  Pp.  17-18.

 (g) Although the foregoing considerations may not exhaust
the universe of those potentially relevant, they are sufficiently
persuasive that the jury's options in this case did not fall
beyond the constitutional bounds of fundamental fairness and
rationality.  P. 19.


Justice Scalia would reach the same result as the plurality with
respect to Schad's verdict-specificity claim, but for a different
reason.  It has long been the general rule that when a single
crime can be committed in various ways, jurors need not agree
upon the mode of commission.  As the plurality observes, one can
conceive of novel "umbrella" crimes that could not, consistent
with due process, be submitted to a jury on disparate theories.
But first-degree murder, which has in its basic form existed in
our legal system for centuries, does not fall into that category.
Such a traditional crime, and a traditional mode of submitting it
to the jury, do not need to pass this Court's "fundamental
fairness" analysis; and the plurality provides no persuasive
justification other than history in any event.  Pp. 1-5.

Souter, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Part III, in which
Rehnquist, C. J., and O'Connor, Scalia, and Kennedy, JJ., joined,
and an opinion with respect to Parts I and II, in which
Rehnquist, C. J., and O'Connor and Kennedy, JJ., joined.  Scalia,
J., filed an opinion concurring in part and concurring in the
judgment.  White, J., filed a dissenting opinion, in which
Marshall, Blackmun, and Stevens, JJ., joined.


EDWARD HAROLD SCHAD, Jr., PETITIONER
v. ARIZONA


on writ of cert