No. 98-251
In the Supreme Court of the United States
OCTOBER TERM, 1998
DWIGHT J. LOVING, PETITIONER
v.
WILLIAM L. HART, COLONEL, COMMANDANT
UNITED STATES DISCIPLINARY BARRACKS, AND
THE UNITED STATES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
(CAPITAL CASE)
BRIEF FOR RESPONDENTS IN OPPOSITION
RUSSELL S. ESTEY
Colonel, USA
EUGENE R. MILHIZER
Lieutenant Colonel, USA
LYLE D. JENTZER
Major, USA
Appellate Government Counsel
Government Appellate Division
Falls Church, Va. 2201-5013
BARBARA D. UNDERWOOD
Acting Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether petitioner's capital sentence for a felony murder in which he
personally killed the victim is proper under applicable constitutional and
harmless-error standards, notwithstanding petitioner's claim, raised for
the first time on collateral review, that his sentence is not supported
by a proper finding that petitioner intentionally killed or was recklessly
indifferent to human life.
2. Whether Military Rule of Evidence 606(b) precluded post-verdict inquiry
into the internal deliberations and voting procedures of the court-martial
members.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-251
DWIGHT J. LOVING, PETITIONER
v.
WILLIAM L. HART, COLONEL, COMMANDANT
UNITED STATES DISCIPLINARY BARRACKS, AND
THE UNITED STATES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
(CAPITAL CASE)
BRIEF FOR RESPONDENTS IN OPPOSITION
OPINION BELOW
The opinion of the United States Court of Appeals for the Armed Forces (Pet.
App. 1a-48a) is reported at 47 M.J. 438.
JURISDICTION
The United States Court of Appeals for the Armed Forces entered judgment
on February 26, 1998. A petition for rehearing was denied on April 9, 1998.
On July 2, 1998, Chief Justice Rehnquist extended the time within which
to file a petition for a writ of certiorari to and including August 7, 1998.
The petition was filed on that date. Petitioner invokes this Court's jurisdiction
pursuant to 28 U.S.C. 1259(3). Respondents believe that this Court lacks
jurisdiction under that provision.
STATEMENT
Petitioner was convicted by a general court-martial of premeditated murder
of one victim and felony murder of another, in violation of Article 118(1)
and (4) of the Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. 918(1)
and (4). Loving v. United States, 517 U.S. 748, 751 (1996). The same court-martial
convicted petitioner of several other, noncapital violations of the U.C.M.J.,
including attempted murder of a third victim and several specifications
of robbery. Pet. App. 1a-2a. After a separate sentencing hearing relating
to the two capital convictions (the premeditated murder of Bobby Sharbino
and the felony murder of Christopher Fay), the court-martial sentenced petitioner
to death. Id. at 64a-65a. Petitioner's convictions and sentence were affirmed
on direct review by the United States Army Court of Military Review and
the United States Court of Appeals for the Armed Forces (formerly the United
States Court of Military Appeals), and by this Court on certiorari. 34 M.J.
956 (1992), aff'd, 41 M.J. 213 (1994), aff'd, 517 U.S. 748 (1996).
After his convictions and sentence were affirmed on direct review, petitioner
filed a petition with the United States Army Court of Criminal Appeals seeking
extraordinary relief in the nature of mandamus. Pet. App. 2a. That court's
denial of the petition for extraordinary relief was affirmed by the United
States Court of Appeals for the Armed Forces. 47 M.J. 438; Pet. App. 1a-48a.
1. Petitioner was an Army private stationed at Fort Hood, Texas. 517 U.S.
at 751. On the night of December 11, 1988, petitioner committed two armed
robberies of convenience stores that netted less than $100. Petitioner then
decided to rob cab drivers. Pet. App. 58a-59a. On December 12, 1988, in
the course of those robberies, petitioner murdered two taxicab drivers and
attempted to murder a third. Id. at 58a-60a, 62a.
The court-martial evidence, which included petitioner's undisputed videotaped
confession, established the following facts. The first robbery and murder
victim, Private Christopher Fay, was an active duty soldier working for
extra money as a cab driver. At approximately 8:00 p.m. on December 12,
Fay drove petitioner from Killeen, Texas, to a secluded area of Fort Hood,
where petitioner robbed him at gunpoint. After taking Fay's money, petitioner
shot him in the back of the head. While watching blood "gushing out"
of Fay's head, petitioner shot him in the back of the head a second time.
Fay's dead body was discovered by another soldier at Fort Hood a short while
later. Pet. App. 59a.
Petitioner, after fleeing to his Fort Hood barracks, called for a second
cab at 8:15 that same evening. The second cab, driven by retired Army Sergeant
Bobby Sharbino, drove petitioner from Fort Hood to a secluded street in
Killeen, Texas. Petitioner robbed Sharbino at gunpoint, ordered him to lie
down on the seat, and murdered him by shooting him in the head. Pet. App.
59a.
After the second murder, petitioner socialized with his girlfriend and others
at local nightclubs. Pet. App. 59a. Later that evening, petitioner robbed
and attempted to murder a third cab driver. The cab driver successfully
defended himself, but petitioner escaped on foot. Id. at 60a. The next day,
petitioner was arrested by Army investigators and made a videotaped confession;
he later reviewed and signed a written transcript of the confession. Id.
at 61a-63a.
2. The general court-martial convicted petitioner of four specifications
of murder contained in a single charge (Charge I): premeditated murder of
Fay (Charge I, Specification 1); premeditated murder of Sharbino (Charge
I, Specification 2); felony murder of Fay (Charge I, Specification 3); and
felony murder of Sharbino (Charge I, Specification 4). The court-martial
also found petitioner guilty of Charge II (attempted murder of the third
cab driver) and Charge III (five specifications involving the cab driver
and convenience store robberies). The guilty findings on three of the murder
convictions (premeditated murder of Sharbino and felony murder of Fay and
Sharbino) were announced as unanimous. The numerical divisions on the remaining
guilty findings, including the Charge I specification of premeditated murder
of Fay, were not announced. Pet. App. 64a.
The presiding military judge dismissed several specifications, including
premeditated murder of Fay and felony murder of Sharbino, as multiplicitous.
Pet. App. 64a-65a. A capital sentencing hearing was held, in accordance
with Rule for Courts-Martial (R.C.M.) 1004, on the Charge I specifications
involving the premeditated murder of Sharbino and the felony murder of Fay.
Pet. App. 65a.
The court-martial members unanimously found that the evidence proved each
of the three alleged aggravating factors beyond a reasonable doubt: 1) "The
premeditated murder of Bobby Gene Sharbino was committed while [petitioner]
was engaged in the commission or attempted commission of a robbery";
2) "Having been found guilty of the felony murder of Christopher Fay
as set forth in specification 3 of Charge I, [petitioner] was the actual
perpetrator of the killing"; and 3) "Having been found guilty
of premeditated murder of Bobby Gene Sharbino, [petitioner] was also found
guilty of another violation of Article 118, U.C.M.J., in the same case."
In accordance with the version of R.C.M. 1004(b)(4)(C) in effect at the
time of the offense, the members also unanimously found that any extenuating
and mitigating circumstances were substantially outweighed by any aggravating
circumstances. Petitioner was sentenced to a dishonorable discharge, total
forfeitures, and to be put to death. Pet. App. 2a-3a, 221a-222a.
3. After his convictions and sentence were affirmed by all courts (including
this Court) on direct review, petitioner filed a petition with the United
States Army Court of Criminal Appeals seeking extraordinary relief in the
nature of mandamus. Pet. App. 2a. The petition raised only one issue: the
claim that petitioner's death sentence had been imposed in violation of
the Eighth Amendment because it was based in part on a conviction of felony
murder that was unsupported by a unanimous finding of intent to kill or
reckless indifference to human life. Ibid. Petitioner had never raised that
claim at any previous stage of the proceedings. The Army Court of Criminal
Appeals summarily denied the petition and, after agreeing to hear petitioner's
writ-appeal from that denial, the United States Court of Appeals for the
Armed Forces affirmed. Id. at 1a-48a.
The judges on the Court of Appeals for the Armed Forces unanimously agreed
that the claim raised in petitioner's writ-appeal did not warrant setting
aside his death sentence. See Pet. App. 4a-18a (majority opinion of Gierke,
J.); id. at 18a-35a (Sullivan, J., concurring in part and in the result);
id. at 35a (Effron, J., concurring in part and dissenting in part). After
examining the statute and this Court's capital punishment jurisprudence
(id. at 9a-10a), the majority held that the second aggravating factor (that
petitioner was the "actual perpetrator" of the killing for which
he had been found guilty of felony murder) applies only to a perpetrator
who intentionally kills or who exhibits reckless indifference to human life.
Id. at 10a. As so construed, the majority held (id. at 11a), this factor
sufficiently narrows the class of death-eligible offenders to meet the narrowing
requirement of Zant v. Stevens, 462 U.S. 862 (1983), and the culpability
requirement of Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,
481 U.S. 137 (1987).
The court rejected petitioner's contention that the court-martial instructions
did not expressly limit the "actual perpetrator" factor to intentional
or reckless killers. Noting that petitioner "did not request [such
an instruction] or object to the lack of definition," the majority
held that "the military judge's failure to define ['actual perpetrator
of the killing'] was not error under the particular facts of this case."
Pet. App. 12a. The majority held that "[t]he overwhelming and uncontested
evidence established that [petitioner], acting alone, personally and intentionally
killed Mr. Fay." Ibid. It further held that, "[u]nder these facts,
there is no reasonable possibility that the court members understood the
term 'actual perpetrator of the killing' to mean anything other than an
intentional killing." Id. at 13a. Indeed, the court held, a "reasonable
factfinder at either the trial or appellate level could come to no other
conclusion" because "[t]he issue of an accidental or unintentional
killing was not raised." Ibid. Finally, "[e]ven assuming arguendo
that an instruction defining 'actual perpetrator of the killing' should
have been given," the court was "satisfied that such a deficiency
was harmless beyond a reasonable doubt because it could not possibly have
affected the court-martial's finding of the aggravating factor." Ibid.
The court declined to remand to the Court of Criminal Appeals for a specific
finding of culpability because of "the complete absence of any factual
issue on this matter" and the harmless-error finding. Id. at 14a.
The court also held that, wholly apart from the "actual perpetrator"
factor, the two other aggravating factors found by the court-martial sufficed
to narrow the class of death-eligible offenders. Given those other indisputably
valid factors (petitioner's premeditated murder of Sharbino during a robbery
and his commission of more than one murder), the court was satisfied beyond
a reasonable doubt that any error in the actual perpetrator factor had no
effect upon the process of "determining 'death eligibility,' before
the weighing process began." Pet. App. 14a-15a.
The court also found no prejudicial error at the weighing stage. The court
recognized that in some circumstances an invalid aggravating factor may
"skew" the "weighing process" in a capital sentencing
proceeding. But it concluded, on the facts of this case, that any error
in submitting the actual perpetrator factor at that stage was harmless beyond
a reasonable doubt. Pet. App. 15a. The court explained that, whether or
not properly labeled a factor, petitioner's "role as the 'actual perpetrator
of the killing' was properly considered by the members as an aggravating
circumstance." Ibid. (emphasis added) (citing R.C.M. 1004(b)(4)(C)).
The court reiterated that petitioner was constitutionally sentenced for
the capital offense of felony murder of Fay (along with the premeditated
murder of Sharbino) and that the actual perpetrator factor was properly
submitted to the jury. Pet. App. 16a. The court found no basis for reversing
petitioner's sentence, even assuming the failure to define actual perpetrator
made it error to submit the felony-murder charge as a capital offense and
error to submit the actual-perpetrator issue as an aggravating factor. The
court was "satisfied beyond a reasonable doubt that the number of capital
offenses and number of aggravating factors had no impact on the sentencing
deliberations and that the mislabeling of the triggerman circumstance as
a 'factor' was likewise harmless beyond a reasonable doubt." Id. at
17a-18a.
4. While his writ-appeal challenge of the triggerman factor was pending,
petitioner also sought leave to file, out of time, a petition for rehearing
of the court of appeals' 1994 decision affirming his sentence on direct
review. Petitioner had unsuccessfully argued on direct review that affidavits
demonstrated that court-martial members followed improper voting procedures
during their sentencing deliberations. The court of appeals, with one judge
dissenting, held those affidavits insufficient to upset a facially valid
verdict. Pet. App. 65a-82a (citing Mil. R. Evid. 606(b)). Petitioner did
not seek further review of that issue in his certiorari petition, and this
Court affirmed his convictions and sentence. 517 U.S. at 774. On February
26, 1998, the same day it denied his writ appeal, the court of appeals (with
one judge dissenting) denied petitioner's motion for leave to file a rehearing
petition out of time. Pet. App. 291a.
ARGUMENT
1. Petitioner claims (Pet. 10-23) that his death sentence was imposed in
violation of the Eighth Amendment and must be vacated, because the court-martial
was not instructed to find that petitioner intentionally killed Christopher
Fay or exhibited reckless indifference to human life when killing Fay in
the course of robbing him. That claim does not warrant this Court's review.
a. As an initial matter, this Court lacks jurisdiction to hear petitioner's
claim under 28 U.S.C. 1259.1 Petitioner invokes subsection (3) of Section
1259, which authorizes this Court to review cases "in which the Court
of Appeals for the Armed Forces granted a petition for review under section
867(a)(3) of title 10" of the United States Code. The Court of Appeals
for the Armed Forces did not review petitioner's claim under 10 U.S.C. 867(a)(3).2
That Section applies only to cases on direct review. See Hendrix v. Warden,
49 C.M.R. 146, 147 (C.M.A. 1974). Petitioner did not rely on that provision
in seeking review in the court below, and that court did not invoke it;
rather the court relied on the All Writs Act, 28 U.S.C. 1651(a). Pet. App.
4a. There is no basis for concluding that Section 1259(3) permits this Court's
review of a case in which jurisdiction in the court of appeals rested on
the All Writs Act.
Nor does this Court have jurisdiction under any of the other three provisions
of 28 U.S.C. 1259. That Section authorizes, in subsections (1) and (2),
Supreme Court review only of cases reviewed by the Court of Appeals for
the Armed Forces under 10 U.S.C. 867(a)(1) and (2), which are provisions
by which that court exercises direct review of certain classes of cases.3
Section 1259 also authorizes, in subsection (4), review of other cases in
which the court of appeals has "granted relief." The Court of
Appeals of the Armed Forces did not "grant[] relief" to petitioner.
Thus, Section 1259 does not afford a basis for this Court's review.
Even assuming this Court might have some other source of authority to review
the judgment below, it should not exercise it to review the merits of petitioner's
claim, because the Court of Appeals for the Armed Forces erred in exercising
jurisdiction over the claim under 28 U.S.C. 1651(a). Petitioner's current
challenge is a collateral attack on his conviction and sentence, which became
final upon this Court's decision on review of his direct appeal. Although
that collateral challenge could have been brought in federal district court
under 28 U.S.C. 2241, see Schlesinger v. Councilman, 420 U.S. 738, 747,
748 (1975); Burns v. Wilson, 346 U.S. 137, 139 (1953), petitioner instead
brought it in the military courts. The United States Court of Appeals for
the Armed Forces (CAAF), however, lacks jurisdiction to grant habeas corpus
relief under Section 2241. See Robison v. Abbott, 49 C.M.R. 8, 9-10 (C.M.A.
1974). And that court does not have jurisdiction to grant the equivalent
relief in this case under the All Writs Act, 28 U.S.C. 1651(a). Because
this Court affirmed petitioner's conviction and sentence on direct review,
the judgment of the court-martial was final, see 10 U.S.C. 871(c)(1)(C)(iii),
876; R.C.M. 1209(a), and the case could no longer come before the Army Court
of Criminal Appeals under 10 U.S.C. 866 (1994 & Supp. II 1996). Therefore,
that court had no jurisdiction under 28 U.S.C. 1651(a) to grant a petition
for extraordinary relief "in aid of [its] jurisdiction[]." There
is no reason for this Court to exercise any possible jurisdiction it might
have to reach the merits of petitioner's claims. See, e.g., Mansfield, Coldwater
& Lake Michigan Ry. v. Swan, 111 U.S. 379, 381 (1884); Liberty Mut.
Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976).
This Court has granted certiorari in Clinton v. Goldsmith, No. 98-347 (cert.
granted, Nov. 2, 1998), in which we also challenge the jurisdiction of the
United States Court of Appeals for the Armed Forces to hear a post-conviction
claim for relief under 28 U.S.C. 1651(a).4 This Court need not, however,
hold this case pending its decision in Goldsmith because, even if United
States Court of Appeals for the Armed Forces properly exercised jurisdiction
in this case, this Court lacks jurisdiction under the provision petitioner
has invoked (28 U.S.C. 1259(3)), there is no other clear source of jurisdiction,
and the merits of petitioner's claim do not, in any event, warrant this
Court's review.
b. Petitioner's theory is that, for his capital sentence to be valid, the
Eighth Amendment required an instruction to the court-martial members that
they must unanimously find that he had the intent to kill or exhibited reckless
indifference to human life. Pet. 15-20. That theory is incorrect.5 Even
if petitioner were correct about the level of culpability needed to support
a capital sentence for the actual triggerman in a felony murder, the Eighth
Amendment does not require that the culpability finding be made by a particular
tribunal or at any particular point in the capital punishment proceedings.
Cabana v. Bullock, 474 U.S. 376, 386 (1986) ("If a person sentenced
to death in fact killed, attempted to kill, or intended to kill, the Eighth
Amendment itself is not violated by his or her execution regardless of who
makes the determination of the requisite culpability."); Hopkins v.
Reeves, 118 S. Ct. 1895, 1902 (1998) ("Tison and Enmund do not affect
the showing that a State must make at a defendant's trial for felony murder.").
The Eighth Amendment requires only that "at some point in the process,
the requisite factual finding as to [petitioner's] culpability has been
made." Cabana, 474 U.S. at 387; see also Hopkins, 118 S. Ct. at 1902.
Thus, the Eighth Amendment cannot require that the court-martial have been
instructed that it had to make the finding of petitioner's culpability.
See Cabana, 474 U.S. at 387 (reviewing court's inquiry cannot be limited
to an examination of the jury instructions).6
Here, moreover, the record and instructions reveal that both the court-martial
and the court of appeals found that petitioner intentionally killed Fay.
The court of appeals correctly held that the court-martial necessarily made
that finding when it found that petitioner was the "actual perpetrator"
of Fay's murder. As the court of appeals explained, "the overwhelming
and uncontested evidence," including petitioner's unchallenged confession,
"established that [petitioner], acting alone, personally and intentionally
killed Mr. Fay." Pet. App. 12a. "The issue of an accidental or
unintentional killing was not raised." Id. at 13a. Thus, the court-martial
could not reasonably have found that petitioner was the triggerman without
also having found that he intentionally killed Fay.7
The court of appeals itself made the same finding. In describing how it
arrived at its understanding of what the court-martial found, the court
of appeals stated that "[t]he overwhelming and uncontested evidence
established that [petitioner], acting alone, personally and intentionally
killed Mr. Fay." Pet. App. 12a. Indeed, the court held that "[a]
reasonable factfinder at either the trial or the appellate level could come
to no other conclusion." Id. at 13a. That statement necessarily entails
an appellate finding that petitioner intentionally killed Fay.8
Contrary to petitioner's implication (Pet. 11, 12-13), the finding that
petitioner intended to kill Fay is not constitutionally deficient simply
because it was not made for the express purpose of satisfying the Enmund/Tison
requirement. The relevant issue is whether the culpability finding was made,
not the purpose for which it was made. See Cabana, 474 U.S. at 389-390 (scrutinizing
findings by state supreme court to determine whether they satisfy Enmund
even though state court "obviously was not addressing the specific
requirements set forth in Enmund, for that case had not yet been decided").
c. Petitioner concedes (Pet. 11, 16-17) that the court of appeals could
constitutionally have made the Enmund/Tison finding. He contends (Pet. 17-18),
however, that he was nonetheless entitled to a jury instruction explaining
that the court martial was required to make that finding because the court
of appeals decided, as a matter of military law, that the court martial
was the appropriate body to make the finding. That claim arises under federal
law, not the Constitution, and does not involve "a fundamental defect
which inherently results in a complete miscarriage of justice, [or] an omission
inconsistent with the rudimentary demands of fair procedure." Hill
v. United States, 368 U.S. 424, 428 (1962). The claim is therefore not cognizable
on collateral review.
In any event, any instructional error that might have occurred is necessarily
harmless beyond a reasonable doubt given the finding of the court of appeals
(Pet. App. 13a) that, under the facts of the case and the theory on which
it was argued, "there is no reasonable possibility that the court members
understood the term 'actual perpetrator of the killing' to mean anything
other than an intentional killing." See Cabana, 474 U.S. at 391 n.6
(endorsing harmless error analysis where jury instructions would theoretically
have permitted a capital sentence without a finding on the Enmund factors).
Cabana thus forecloses petitioner's procedural argument (e.g., Pet. 18)
that only a specific instruction stating that "actual perpetrator"
means an intentional or reckless killer could ensure a "fair and reliable"
decision. Indeed, any such requirement would constitute a new rule of criminal
procedure that is not available to petitioner on collateral review. See
Teague v. Lane, 489 U.S. 288 (1989).
Even setting aside Teague, petitioner's contention that the court-martial
should have been instructed that it was required to find that petitioner
acted intentionally or recklessly does not warrant relief here.9 Because
petitioner did not object to the absence of that language from the instruction
on the "actual perpetrator" factor or request that it be so defined,
a court hearing the case on direct appeal would be confined to correcting
plain error. See Pet. App. 12a (quoting R.C.M. 920(f)); cf. Fed. R. Crim.
P. 30, 52(b). Petitioner cannot show that the alleged instructional omission
was plain error, because the evidence that he intended to kill Fay was "overwhelming
and uncontested." Pet. App. 12a-14a; see Johnson v. United States,
520 U.S. 461, 470 (1997) (defendant is not entitled to plain error relief
where instructions to which defendant did not object erroneously failed
to submit element as to which the evidence was overwhelming).
Petitioner should be required, if anything, to clear a higher hurdle. Because
petitioner did not raise his present claim on direct appeal, he must establish
"cause" for the procedural default and "actual prejudice"
from the omission. See United States v. Frady, 456 U.S. 152, 168, 170-171
(1982). The absence of any reason why petitioner failed to make his objection
on direct appeal, coupled with the overwhelming proof of his intent to kill
Fay, establishes that he cannot meet the cause and prejudice standard.
d. Petitioner also contends (Pet. 10-15) that the actual perpetrator factor,
if undefined, did not sufficiently narrow the class of death-eligible defendants
to meet Eighth Amendment standards. As the court of appeals noted (Pet.
App. 6a-7a, 15a), the "actual perpetrator" factor (like the other
two aggravating factors) was applied in two phases of the sentencing process:
(1) the "eligibility phase," in which it served to "narrow[]
the class of defendants eligible for the death penalty"; and (2) the
"selection phase," where the jury weighed it in "determin[ing]
whether to impose a death sentence on an eligible defendant." Buchanan
v. Angelone, 118 S. Ct. 757, 761 (1998) (citing Tuilaepa v. California,
512 U.S. 967, 971-972 (1994)).
Petitioner cannot show prejudicial error at either of those phases. If we
are correct, as discussed above, that the court-martial's finding that petitioner
was the actual perpetrator necessarily included the finding that he intentionally
killed, there was sufficient narrowing even under petitioner's theory. In
any event, even without the actual-perpetrator factor, there was sufficient
narrowing in this case at the "eligibility" phase because two
other indisputably valid aggravating factors remained. Those two factors
(petitioner's premeditated murder of Sharbino during a robbery and his commission
of more than one murder) served the requisite narrowing function, regardless
of whether petitioner was also death-eligible as the actual perpetrator
of Fay's murder. Thus, petitioner's claim that "for narrowing purposes,
it is just as if the [actual perpetrator] factor did not exist" (Pet.
14), even if accurate, does not justify setting aside his death sentence.
Pet. App. 14a-15a; see Zant v. Stephens, 462 U.S. 862, 884 (1983) ("death
sentence supported by at least one valid aggravating circumstance need not
be set aside * * * simply because another aggravating circumstance is 'invalid'
in the sense that it is insufficient by itself to support the death penalty").
There was likewise no defect at the "weighing" phase of the capital
sentencing process. Pet. App. 15a. Because the actual perpetrator factor
was one of three factors weighed in the selection phase, a defect in it
could give rise to a constitutional issue. Ibid.; Stringer v. Black, 503
U.S. 222, 232 (1992). The court of appeals properly concluded, however,
that any error in submitting the actual perpetrator factor without expressly
limiting it to intentional or reckless killings was "harmless beyond
a reasonable doubt." Pet. App. 15a-18a; Stringer, 503 U.S. at 232 (endorsing
"constitutional harmless-error analysis" where invalid aggravator
is included in the weighing process).
The alleged error was harmless beyond a reasonable doubt because, as explained
above at pages 13-15 and 16, based on the evidence and arguments in the
case, the court-martial could not reasonably have found that petitioner
was the triggerman without also finding that he intentionally killed Fay.
The alleged error was also harmless beyond a reasonable doubt because, even
without further definition, the court-martial members were entitled to weigh
the fact that petitioner was the actual triggerman in the felony murder
of Fay. There was nothing improper or vague in the actual perpetrator aggravating
circumstance. The flaw, according to petitioner, was that, without further
definition that clearly limited it to intentional or reckless killings,
it could not serve the narrowing function required by Zant. Pet. 12.10 The
actual perpetrator factor was not necessary to serve that narrowing function,
because there were two other, valid aggravating factors.
The alleged error, therefore, resulted (at worst) in the mislabeling of
petitioner's role as triggerman as an aggravating "factor" rather
than "circumstance." Pet. App. 15a. Therefore, as the court of
appeals explained, "any defect in the court-martial's finding concerning
the 'actual-perpetrator' factor did not put a 'thumb' on 'death's side of
the scale' because the same facts and circumstances remained on the same
sides of the scale." Id. at 15a-16a. Petitioner speculates (Pet. 20-23)
that the mislabeling could have prejudiced him because it increased the
number of death-eligible offenses from one to two, and the number of aggravating
factors from two to three. As the court of appeals explained, however, "the
entire emphasis by counsel for both sides during the sentencing proceedings
was on the facts and circumstances of the offenses and the background of
[petitioner], not on the number of capital offenses or aggravating factors.
Neither counsel made reference to the number of capital offenses or aggravating
factors in their sentencing arguments." Pet. App. 17a. The court of
appeals thus properly determined that petitioner suffered no prejudice from
the failure to define the aggravating factor. Id. at 17a-18a. That determination
does not warrant review by this Court.
2. Petitioner also seeks (Pet. 24-28) review of a claim, rejected in 1994
by the court of appeals on direct review (Pet. App. 65a-82a), and not raised
by petitioner in his original certiorari petition, that the court-martial
members followed illegal voting procedures. That claim was not before the
court of appeals and is therefore not properly before this Court.
Petitioner filed a motion for leave to file, out of time, a petition for
rehearing on the voting procedures claim while his writ-appeal was pending
before the court of appeals, but that court denied the motion. Pet. App.
291a. As discussed above at page 9 & notes 1-2, the jurisdictional statute
invoked by petitioner applies only where the court of appeals "granted
a petition for review under section 867(a)(3) of title 10." 28 U.S.C.
1259(3). It does not permit review of the denial of out-of-time motions
for rehearing. Petitioner could have included the voting rights claim in
his original certiorari petition, invoking this Court's jurisdiction under
28 U.S.C. 1259, but he failed to do so. The time for seeking review of this
claim has long since expired. See 28 U.S.C. 2101(c); Sup. Ct. R. 13.1.
The claim would not warrant further review even if it were properly before
the Court. Military Rule of Evidence 606(b), like Federal Rule of Evidence
606(b), codifies a longstanding rule of procedure generally limiting post-verdict
inquiry into internal jury matters. See Tanner v. United States, 483 U.S.
107, 116-125 (1987). Petitioner's arguments (e.g., that members allegedly
"did not vote at all on the aggravating factors" but instead "took
an either/or vote writing on their secret ballots 'life' or 'death,'"
(Pet. 25)) challenge internal deliberations and procedures that are immune
from post-verdict inquiry.
Military Rule of Evidence 606(b) differs from its civilian counterpart by
allowing inquiry not only into outside influence (something that is not
alleged here) but also into "unlawful command influence" (an issue
that the Court of Appeals for the Armed Forces is uniquely qualified to
review). The court of appeals held in 1994 that petitioner's proffered affidavits
"do not raise an issue of unlawful command influence" but instead
"reflect no more than Colonel Aylor's proper exercise of authority
as president [of the court-martial] to preside over the deliberations."
Pet. App. 79a. Petitioner errs in relying on United States v. Thomas, 46
M.J. 311 (C.A.A.F. 1997), which set aside a death sentence when the military
judge affirmatively instructed members to follow incorrect voting procedures.
Because jurors are presumed to follow their instructions, see, e.g., Shannon
v. United States, 512 U.S. 573, 585 (1994), erroneous instructions as to
the procedures to be followed may entitle a defendant to relief. Petitioner
in contrast, seeks to prove that the court-martial members violated their
instructions. The court of appeals properly held in 1994 that such an attempt
is precluded by Military Rule of Evidence 606(b). Petitioner's belated challenge
to that conclusion, including his case-specific argument that both the majority
and dissenting judges overlooked record evidence supporting his unlawful
command influence claim (Pet. 26-27 & n.10), warrants no further review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
RUSSELL S. ESTEY
Colonel, USA
EUGENE R. MILHIZER
Lieutenant Colonel, USA
LYLE D. JENTZER
Major, USA
Appellate Government Counsel
BARBARA D. UNDERWOOD
Acting Solicitor General*
NOVEMBER 1998
1 Section 1259 of Title 28 of the United States Code provides:
Decisions of the United States Court of Appeals for the Armed Forces may
be reviewed by the Supreme Court by writ of certiorari in the following
cases:
(1) Cases reviewed by the Court of Appeals for the Armed Forces under section
867(a)(1) of title 10.
(2) Cases certified to the Court of Appeals for the Armed Forces by the
Judge Advocate General under section 867(a)(2) of title 10.
(3) Cases in which the Court of Appeals for the Armed Forces granted a petition
for review under section 867(a)(3) of title 10.
(4) Cases, other than those described in paragraphs (1), (2), and (3) of
this subsection, in which the Court of Appeals for the Armed Forces granted
relief.
2 Section 867(a)(3) states that the Court of Appeals for the Armed Forces
shall review the record in
"(3) all cases reviewed by a Court of Criminal Appeals in which, upon
petition of the accused and on good cause shown, the Court of Appeals for
the Armed Forces has granted a review."
3 Section 867(a)(1) authorizes the Court of Appeals for the Armed Forces
to review cases in which a sentence of death was imposed, and Section 867(a)(2)
authorizes the Court of Appeals to review cases in which the Judge Advocate
General so requests. Both provisions apply to direct appeals; neither applies
to writ-appeal petitions. See Rules 4 and 18 of the Rules of the U.S. Court
of Appeals for the Armed Forces. Indeed, in the court below, petitioner
sought to rely on Section 867(a)(1) as a basis for jurisdiction, but the
Court of Appeals deliberately declined to rest its assertion of jurisdiction
on that provision. Pet. App. 4a.
4 We are providing a copy of our petition in Goldsmith to petitioner in
this case.
5 As we have done at earlier stages of this case, we assume that the principles
enunciated in Furman v. Georgia, 408 U.S. 238 (1972), and elaborated in
later cases are applicable to sentences of death imposed by courts-martial.
This Court has not decided that question. See Loving, 517 U.S. at 755; Schick
v. Reed, 419 U.S. 256, 267 (1974).
6 Petitioner's threshold argument (Pet. 11) that, to be eligible for a capital
sentence, the actual killer in a felony murder must meet the culpability
showings he describes fails to acknowledge that this Court's cases have
never endorsed the proposition that the Constitution requires a finding
that the triggerman in a felony murder exhibited reckless indifference to
human life or had an intent to kill. Indeed, the Court's cases suggest the
contrary. In Enmund v. Florida, 458 U.S. 782, 797 (1982), the Court held
that, in a felony murder prosecution, the Eighth Amendment prohibits imposition
of the death penalty on a person who "does not himself kill, attempt
to kill, or intend that a killing take place or that lethal force will be
employed." In Tison v. Arizona, 481 U.S. 137, 158 (1987), the Court
clarified that the Eighth Amendment's culpability requirement in a felony
murder case is satisfied by "major participation in the felony committed,
combined with reckless indifference to human life." In doing so, the
Court explained that Enmund "clearly dealt" with "the felony
murderer who actually killed" and "clearly held" that "jurisdictions
that limited the death penalty to these circumstances could continue to
exact it in accordance with local law when the circumstances warranted."
481 U.S. at 150. There is no dispute in this case that petitioner brought
a loaded gun with him to rob Fay and in the course of that felony personally
shot and killed Fay.
7 Petitioner claims (Pet. 18-19) that the court-martial members "did
not unanimously find an intent to kill" Fay because their verdict that
petitioner killed Fay with premeditation was not unanimous. That argument
incorrectly equates "premeditation" with "intent to kill."
The U.C.M.J., like many murder statutes, imposes different penalties for
premeditated murder and "intentional murder without premeditation."
Loving, 517 U.S. at 755-756; Pet. App. 173a-174a (following "congressional
determination that an intentional killing preceded by consideration of the
fatal act with a 'cool mind' is more serious and deserving of more serious
punishment than an intentional killing without such consideration").
Accordingly, that the court-martial members did not unanimously find premeditation
does not mean that they concluded that he lacked the intent to kill. See
id. at 174a.
8 Confirming that reading, the court of appeals also stated that it need
not "remand to the Court of Criminal Appeals for a specific finding
of culpability" "[i]n view of the complete absence of any factual
issue on this matter." Pet. App. 14a. The court later reiterated that,
"[f]or the reasons set out above, we hold that [petitioner] was convicted
of a capital-felony murder that satisfies the proportionality requirements
of Enmund and Tison." Id. at 16a.
9 The issue is unlikely to arise in the future. After concluding that the
actual perpetrator factor had to embrace only intentional or reckless killings
to satisfy the narrowing function required by Zant v. Stephens, 462 U.S.
862, 877 (1983), the court of appeals "strongly urged" military
judges to include that language in defining the term "actual perpetrator."
Pet. App. 12a n.4.
10 Petitioner also asserts (Pet. 12) that such further definition was required
to satisfy the culpability requirement of Enmund. That contention is addressed
above. See pages 12-17, supra.
* The Solicitor General is disqualified in this case.