Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/schaz2.asc

Text File | 1993-08-01 | 38KB | 707 lines

Notes from main opinion

1
 The full statute provided:

"A murder which is perpetrated by means of poison or lying in
wait, torture or by any other kind of wilful, deliberate or
premeditated killing, or which is committed in avoiding or
preventing lawful arrest or effecting an escape from legal
custody, or in the perpetration of, or attempt to perpetrate,
arson, rape in the first degree, robbery, burglary, kidnapping,
or mayhem, or sexual molestation of a child under the age of
thirteen years, is murder of the first degree.  All other kinds
of murder are of the second degree."
 The statute has since been revised, but both premeditated
murder and murder in the course of a robbery still constitute
first degree murder.  See Ariz. Rev. Stat. Ann. MDRV 13-1105.A
(1989).

2
 Respondent contends that petitioner waived this
contention by failing to raise it in the lower Arizona courts.
Brief for Respondent 8-10.  The Arizona Supreme Court, however,
addressed the contention on the merits, 163 Ariz. 411, 417, 788
P. 2d 1162, 1168 (1989), thereby preserving the issue for our
review.  See Orr v. Orr, 440 U. S. 268, 274-275 (1979).

3
 See also Wechsler, A Rationale of the Law of Homicide: I,
37 Colum. L.  Rev. 701, 702-703 (1937); Perkins, A Rationale of
Mens Rea, 52 Harv. L.  Rev. 905, 926 (1939).

4
 Although our vagueness cases support the notion that a
requirement of proof of specific illegal conduct is fundamental
to our system of criminal justice, the principle is not dependent
upon or limited by concerns about vagueness.  A charge allowing a
jury to combine findings of embezzlement and murder would raise
identical problems regardless of how specifically embezzlement
and murder were defined.

5
 The court identified this right as a concomitant of the
federal criminal defendant's Sixth Amendment right to a unanimous
verdict, and subsequent courts following Gipson have adopted that
characterization.  E.  g., United States v. Beros, 833 F. 2d 455
(CA3 1987).  For the reasons given earlier, we think the right is
more accurately characterized as a due process right than as one
under the Sixth Amendment.  Although this difference in
characterization is important in some respects (chiefly, because
a state criminal defendant, at least in noncapital cases, has no
federal right to a unanimous jury verdict, see Johnson v.
Louisiana, 406 U.
S. 356 (1972); Apodaca v. Oregon, 406 U. S. 404 (1972)), it is
immaterial to the problem of how to go about deciding what level

of verdict specificity is constitutionally necessary.

6
 Because statutes frequently enumerate alternatives that
clearly are mere means of satisfying a single element of an
offense, adoption of the dissent's approach of requiring a
specific verdict as to every alternative would produce absurd
results.  For example, the Arizona first-degree murder statute at
issue here prohibited, inter alia, "wilful, deliberate or
premeditated killing." Ariz. Rev. Stat. Ann. MDRV 13-452 (Supp.
1973) (emphasis added).  Under the dissent's approach, juries in
prosecutions brought under the statute presumably should have
been required to deliver specific verdicts as to each of the
three: wilfullness, deliberation, and premeditation.

7

 We note, however, the perhaps obvious proposition that
history will be less useful as a yardstick in cases dealing with
modern statutory offenses lacking clear common law roots than it
is in cases, like this one, that deal with crimes that existed at
common law.

8
 The Pennsylvania statute provided:

"[A]ll murder, which shall be perpetrated by means of poison, or
by lying in wait, or by any other kind of willful, deliberate and
premeditated killing, or which shall be committed in the
perpetration, or attempt to perpetrate any arson, rape, robbery,
or burglary, shall be deemed murder of the first degree; and all
other kinds of murder shall be deemed murder in the second
degree." 1794 Pa. Laws, ch. 1766, MDRV 2.

9
 The dissent's focus on the "risks of different
punishment," post, at 7-8, and n. 4, for premeditated and felony
murder, ignores the fact that the Arizona sentencing statute
applicable to petitioner, Ariz. Rev. Stat.  Ann. MDRV 13-453
(Supp. 1973), authorized the same maximum penalty (death) for
both means of committing first-degree murder.  See McMillan v.
Pennsylvania, 477 U. S. 79, 87-88 (1986) (relying on fact that
under Pennsylvania law possession of a weapon "neither alters the
maximum penalty for the crime committed nor creates a separate
offense calling for a separate penalty").  Moreover, the
dissent's concern that a general verdict does not provide the
sentencing judge with sufficient information about the jury's
findings to provide a proper premise for the decision whether or
not to impose the death penalty, post, at 7-8, goes only to the
permissibility of a death sentence imposed in such circumstances,
not to the issue currently before us, which is the permissibility
of the conviction.  To make the point by example, even if the
trial judge in this case had satisfied any possible specific
verdict concerns by instructing the jurors that they were
required to agree on a single theory of the crime, the dissent's
"insufficient sentencing information" concern would remain unless
the judge had also taken the additional step (a step unrelated to
petitioner's right to jury agreement on the specific conduct he
committed) of requiring them to return separate forms of verdict.
The only relevant question for present purposes is what the jury
must decide, not what information it must provide the sentencing
judge.

10
 Petitioner also contends that the jury should have been
instructed on the offense of theft, against which respondent
argues that any claim for a lesser included theft offense
instruction was waived.  Given respondent's concession that
petitioner has preserved his claim for a robbery instruction, and
our view of the scope of Beck, see infra, at 20-22, there is no
need to resolve this waiver issue.


 Justice Scalia, concurring in part and concurring in the
judgment.

 The crime for which a jury in Yavapai County, Arizona,
convicted Edward Harold Schad in 1985 has existed in the
Anglo-American legal system, largely unchanged, since at least
the early 16th century, see 3 J. Stephen, A History of the
Criminal Law of England 45 (1883); R. Moreland, Law of Homicide
9-10 (1952).  The common-law crime of murder was the unlawful
killing of a human being by a person with "malice aforethought"
or "malice prepense," which consisted of an intention to kill or
grievously injure, knowledge that an act or omission would
probably cause death or grievous injury, an intention to commit a
felony, or an intention to resist lawful arrest.  Stephen, supra,
at 22; see also 4 W. Blackstone, Commentaries 198-201 (1769); 1
M. Hale, Pleas of the Crown 451-466 (1st Am. ed. 1847).

 The common law recognized no degrees of murder; all
unlawful killing with malice aforethought received the same
punishment -- death.  See F.  Wharton, Law of Homicide 147 (3d
ed. 1907); Moreland, supra, at 199.  The rigor of this rule led
to widespread dissatisfaction in this country.  See McGautha v.
California, 402 U. S. 183, 198 (1971).  In 1794, Pennsylvania
divided common-law murder into two offenses, defining the crimes
thus:

      [A]ll murder which shall be perpetrated by means of
      poison, or lying in wait, or by any other kind of
      willful, deliberate, or premeditated killing; or which
      shall be committed in the perpetration, or attempt to
      perpetrate any arson, rape, robbery, or burglary, shall
      be deemed murder of the first degree; and all other
      kinds of murder shall be deemed murder in the second
      degree." 1794 Pa. Laws, ch. 1766, MDRV 2.

That statute was widely copied, and down to the present time the
United States and most States have a single crime of first-degree
mur