Florida v. Burr 487 1201, 108 2840 487 1250, 109 13 518 903 550 444

• Decision Date: 11 June 1990
• Docket Number: No. 89-1320,89-1320
• Citation: 110 S.Ct. 2608,110 L.Ed.2d 629,496 U.S. 914
• Parties: FLORIDA, petitioner v. Charles Lewis BURR. Former decision, 487 U.S. 1201, 108 S.Ct. 2840; 487 U.S. 1250, 109 S.Ct. 13. Case below, 518 So.2d 903; 550 So.2d 444.
• Court: U.S. Supreme Court

496 U.S. 914

110 S.Ct. 2608

110 L.Ed.2d 629

FLORIDA, petitioner

v Charles Lewis BURR.

No. 89-1320.

Former decision, 487 U.S. 1201, 108 S.Ct. 2840; 487 U.S. 1250, 109 S.Ct. 13.

Case below, 518 So.2d 903; 550 So.2d 444.

On Petition for Writ of Certiorari to the Supreme Court of Florida.

June 11, 1990. The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Supreme Court of Florida for further consideration in light of Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).

Opinion on remand, 576 So.2d 278.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

For the reasons stated by Justice STEVENS, I agree that the judgment of the Florida Supreme Court should not be vacated. In any event, adhering to my view 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, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976), I would direct that the proceedings on remand be circumscribed such that the State may not impose the death sentence.

Justice BLACKMUN dissents.

Justice STEVENS, dissenting.

Respondent was convicted of first-degree murder and robbery with a firearm. To establish respondent's identity, at the guilt phase of the trial the prosecution relied on "collateral crimes evidence"—three witnesses testified that respondent had committed similar crimes after the fatal shooting involved in this case. At the sentencing phase of his trial, the prosecutor offered no additional evidence; the jury recommended that respondent be sentenced to imprisonment for life with no possibility of parole for 25 years.

The trial judge overrode the jury's recommendation and sentenced respondent to death. He unequivocally stated that his decision to impose the death sentence was based on the collateral crimes evidence that had been received for the limited purpose of proving respondent's identity at the guilt phase of the trial.¹

Respondent was later tried and acquitted of one of the collateral crimes, and the State abandoned its prosecution of a second. Thereafter, in state collateral-review proceedings, respondent sought to set aside his conviction on the ground that the subsequent acquittal of one of the collateral crimes demonstrated that the evidence had been improperly admitted.² Over the dissent of Justice Barkett, the Florida Supreme Court rejected that conten- tion; it held that evidence that was properly received at the time it was offered had not been rendered "retroactively inadmissible." ³

In her dissent, Justice Barkett did not directly challenge that conclusion. She contended, however, that the State Supreme Court should have considered the propriety of the trial judge's reliance on that evidence at the penalty phase of the trial even though respondent's counsel had not squarely raised that point. She wrote:

"I believe petitioner is entitled to a new appeal because of the trial court's application of collateral crimes evidence during the sentencing phase of the trial. Concededly, the issue has only been raised as it relates to the guilt phase, and I disagree with the majority's conclusions in this regard. However, I am deeply troubled by the effect of this evidence on the sentence, find it contrary to Florida and federal law, and cannot see the sense in waiting for a formal petition for writ of habeas corpus to argue a point I believe should have been argued on direct appeal. Thus, I would call for additional briefs and decide the issue at this time.

"The death penalty was imposed in this case because the trial judge found three aggravating factors that, in his mind, rendered the jury's recommendation of life imprisonment unreasonable. Two of these factors were derived from evidence of three collateral crimes (although the defendant was acquitted of one and the state nolle prossed another).

"The Williams rule was established not to prove propensity but to prove identity. The sole purpose of allowing evidence of collateral crimes is to show that the defendant indeed is the perpetrator of the charged offense. We accept the inherent risk of prejudice that this type of evidence creates by balancing that prejudice against the relevance of proving that the defendant committed the crime.

"In the conventional use of the Williams rule, the state is not relieved of its obligation to prove beyond a reasonable doubt the facts and circumstances of the crime charged. To permit aggravating factors to be supported by Williams rule evidence not only expands the rule beyond its original purpose, but completely relieves the state of its burden of proving the existence of aggravating factors. Under this novel approach, aggravating factors could be proved merely by showing that they existed in collateral crimes committed by the accused, whether or not they actually existed in the crime charged in the indictment.

"I do not believe this was a conscious holding of this Court on the direct appeal, since it was never argued or addressed. Moreover, I do not believe this is consistent with the requirement of proving aggravating circumstances beyond a reasonable doubt.

"In this case, the judge found the aggravating factors of witness elimination and cold, calculated and premeditated murder based predominantly, if not exclusively, on the Williams rule evidence presented during the guilt phase of the trial.

. . . . .

"Moreover, during the penalty phase, the only material facts in issue are the existence of aggravating and mitigating factors provided by law. The aggravating factors are strictly limited by section 921.141, Florida Statutes. Under section 921.141(5), only one aggravating factor exists that in any way concerns collateral criminal activity, and it expressly is limited to prior convictions of felonies involving violence. See § 921.141(5)(b). To hold that a judge can consider unconvicted criminal conduct in reaching a sentence is to permit the weighing of nonstatutory aggravating factors, contrary to our law. See Elledge v. State, 346 So.2d 998, 1002-03 (Fla.1977)." Burr v. State, 518 So.2d 903, 907-908 (1987).

While respondent's petition for certiorari was pending in this Court, we decided a case with somewhat similar facts. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). In that case a death sentence had been imposed on the basis of three aggravating circumstances, one of which was a prior New York conviction of a violent felony. In state collateral proceedings, Johnson had challenged his death sentence on the ground that the New York Court of Appeals had subsequently held that the prior conviction was invalid. The Mississippi Supreme Court, over the dissent of three justices, rejected that contention holding, in effect, that the subsequent invalidation of the felony conviction had not made the evidence retroactively inadmissible. See Johnson v. State, 511 So.2d 1333 (1987). We reversed, concluding that the death sentence could not stand when "the jury was allowed to consider evidence that has been revealed to be materially inaccurate." 486 U.S., at 590, 108 S.Ct., at 1989.

Our holding in Johnson did not directly resolve the issue presented in Burr's pending petition for certiorari; in Johnson the only evidence of the collateral crime that had been received was a certified copy of the invalid conviction, whereas in Burr's trial a witness had testified about the conduct that was later made the basis of an unsuccessful criminal prosecution. This Court nevertheless concluded that there was enough similarity between the cases to justify a remand of the Burr case to the Florida Supreme Court to reconsider its judgment in the light of our opinion in Johnson. See Burr v. Florida, 487 U.S. 1201, 108 S.Ct. 2840, 101 L.Ed.2d 878 (1988).

As the Court itself demonstrates by its action today, an order remanding a case to a lower court does "not amount to a final determination on the merits," Henry v. City of Rock Hill, 376 U.S. 776, 777, 84 S.Ct. 1042, 1043, 12 L.Ed.2d 79 (1964), but only a conclusion that an intervening decision is sufficiently analogous to make re-examination of the case appropriate. That action was proper after Johnson for three important and independent reasons. First, of course, is the paramount importance of reliability in the determination that death is the appropriate punishment in any capital case.⁴ In Johnson, as in this case, that concern was implicated by a post-trial development that cast doubt on the reliability of evidence that played a critical part in the sentencing decision. Johnson made clear, what was apparent before, see Zant v. Stephens, 462 U.S. 862, 887-888, n. 23, 103 S.Ct. 2733, 2748-2749, n. 23, 77 L.Ed.2d 235 (1983); Gardner v. Florida, 430 U.S. 349, 358-359, 362, 97 S.Ct. 1197, 1204-1205, 1206, 51 L.Ed.2d 393 (1977) (plurality opinion), that a death sentence cannot stand when it is based on evidence that is materially inaccurate. Second, because the case had not yet reached the stage of federal collateral review, it was obvious that its ultimate disposition would be expedited by giving the Florida Supreme Court the first opportunity to consider the impact of Johnson; a different disposition would almost certainly have generated additional collateral proceedings in both state and federal courts. Third, the arguments in Justice Barkett's dissenting opinion, which were based partly on Florida law and partly on federal law, were buttressed by our reasoning in Johnson and had not been expressly rejected by the State Supreme Court's opinion which focused on respondent's contention that the collateral crimes evidence was inadmissible at the guilt phase of his trial.

Following our remand in light of Johnson, the Florida Supreme Court denied Burr's request for a new trial, but vacated his...