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Opinion of the Court

STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 545. SCALIA, J., filed an opinion concurring in part and dissenting in part, post, p. 553.

Gary Caldwell argued the cause for petitioner. With him on the briefs were Richard L. Jorandby and Eric Cumfer.

Carolyn M. Snurkowski, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief were Robert A. Butterworth, Attorney General, and Celia A. Terenzio, Assistant Attorney General.*

JUSTICE SOUTER delivered the opinion of the Court.

Under Florida law, after a defendant is found guilty of capital murder, a separate jury proceeding is held as the first of two steps in deciding whether his sentence should be life imprisonment or death. Fla. Stat. $921.141(1) (1991). At the close of such aggravating and mitigating evidence as the prosecution and the defense may introduce, the trial judge charges the jurors to weigh whatever aggravating and mitigating circumstances or factors they may find, and to reach an advisory verdict by majority vote. $921.141(2). The jury does not report specific findings of aggravating and mitigating circumstances, but if, at the second sentencing step, the judge decides upon death, he must issue a written statement of the circumstances he finds. $921.141(3). A death sentence is then subject to automatic review by the Supreme Court of Florida. $921.141(4).

A Florida trial court sentenced petitioner to death after a jury so recommended, and the Supreme Court of Florida affirmed. We must determine whether, as petitioner claims, the sentencer in his case weighed either of two aggravating factors that he claims were invalid, and if so, whether the State Supreme Court cured the error by holding it harmless.

*Steven M. Goldstein filed a brief for the Volunteer Lawyers Resource Center of Florida, Inc., as amicus curiae urging reversal.

Michael Mello filed a brief for the Capital Collateral Representative of the State of Florida as amicus curiae.

Opinion of the Court

We answer yes to the first question and no to the second, and therefore vacate the judgment of the Supreme Court of Florida and remand.

I On New Year's Eve 1981, petitioner Dennis Sochor met a woman in a bar in Broward County, Florida. Sochor tried to rape her after they had left together, and her resistance angered him to the point of choking her to death. He was indicted for first-degree murder and kidnaping and, after a jury trial, was found guilty of each offense.

At the penalty hearing, aggravating and mitigating evidence was offered, and the jury was instructed on the possibility of finding four aggravating circumstances, two of which were that

“the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel, and [that] the crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner, without any pretense of moral or legal justifi

cation.” App. 326–327. The judge then explained to the jury that it could find certain statutory and any nonstatutory mitigating circumstances, which were to be weighed against any aggravating ones. By a vote of 10 to 2, the jury recommended the death penalty for the murder. The trial court adopted the jury's recommendation, finding all four aggravating circumstances as defined in the jury instructions and no circumstances in mitigation.

The Supreme Court of Florida affirmed. 580 So. 2d 595 (1991). It declined to reverse for unconstitutional vagueness in the trial judge's instruction that the jury could find as an aggravating factor that “the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel” (hereinafter, for brevity, the heinousness factor, after the statute's words “heinous, atrocious, or

Opinion of the Court

cruel,” Fla. Stat. $ 921.141(5)(h) (1991)). The court held the issue waived for failure to object and the claim lacking merit in any event. 580 So. 2d, at 602–603, and n. 10. The court also rejected Sochor's claim of insufficient evidence to support the trial judge's finding of the heinousness factor, citing evidence of the victim's extreme anxiety and fear before she died. The State Supreme Court did agree with Sochor, however, that the evidence failed to support the trial judge's finding that “the crime ... was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification” (hereinafter the coldness factor), holding this factor to require a "heightened" degree of premeditation not shown in this case. Id., at 603. The State Supreme Court affirmed the death sentence notwithstanding the error, saying that:

“[1] We ... disagree with Sochor's claim that his death sentence is disproportionate. [2] The trial court carefully weighed the aggravating factors against the lack of any mitigating factors and concluded that death was warranted. [3] Even after removing the aggravating factor of cold, calculated, and premeditated there still remain three aggravating factors to be weighed against no mitigating circumstances. [4] Striking one aggravating factor when there are no mitigating circumstances does not necessarily require resentencing. Robinson v. State, 574 So. 2d 108 (Fla. 1991); Holton. v. State, 573 So. 2d 284 (Fla. 1990); James v. State, 453 So. 2d 786 (Fla.), cert. denied, 469 U. S. 1098 ... (1984); Francois v. State, 407 So. 2d 885 (Fla. 1981), cert. denied, 458 U. S. 1122 ... (1982). [5] Under the circumstances of this case, and in comparison with other death cases, we find Sochor's sentence of death proportionate to his crime. E. g., Hitchcock v. State, 578 So. 2d 685 (Fla. 1990); Tompkins[ v. State, 502 So. 2d 415 (Fla. 1986), cert. denied, 483 U. S. 1033 (1987)]; Doyle[ v. State, 460 So. 2d 353 (Fla. 1984)].” Id., at 604.

Opinion of the Court

Sochor petitioned for a writ of certiorari, raising four questions. We granted review limited to the following two: (1) “Did the application of Florida's [heinousness factor] violate the Eighth and Fourteenth Amendments?” and (2) “Did the Florida Supreme Court's review of petitioner's death sentence violate the Eighth and Fourteenth Amendments where that court upheld the sentence even though the trial court had instructed the jury on, and had applied, an improper aggravating circumstance, [in that] the Florida Supreme Court did not reweigh the evidence or conduct a harmless error analysis as to the effect of improper use of the circumstance on the jury's penalty verdict?” Pet. for Cert. ii; see 502 U. S. 967 (1991).

II In a weighing State like Florida, there is Eighth Amendment error when the sentencer weighs an "invalid” aggravating circumstance in reaching the ultimate decision to impose a death sentence. See Clemons v. Mississippi, 494 U. S. 738, 752 (1990). Employing an invalid aggravating factor in the weighing process "creates the possibility ... of randomness,” Stringer v. Black, 503 U. S. 222, 236 (1992), by placing a “thumb [on] death's side of the scale,” id., at 232, thus “creat[ing] the risk [of] treat[ing] the defendant as more deserving of the death penalty," id., at 235. Even when other valid aggravating factors exist, merely affirming a sentence reached by weighing an invalid aggravating factor deprives a defendant of "the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances.” Clemons, supra, at 752 (citing Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982)); see Parker v. Dugger, 498 U. S. 308, 321 (1991). While federal law does not require the state appellate court to remand for resentencing, it must, short of remand, either itself reweigh without the invalid aggravating factor or determine that weighing the invalid factor was harmless error. Id., at 320.

Opinion of the Court

A

Florida's capital sentencing statute allows application of the heinousness factor if "[t]he capital felony was especially heinous, atrocious, or cruel.” Fla. Stat. $ 921.141(5)(h) (1991). Sochor first argues that the jury instruction on the heinousness factor was invalid in that the statutory definition is unconstitutionally vague, see Maynard v. Cartwright, 486 U. S. 356 (1988); Godfrey v. Georgia, 446 U. S. 420 (1980), and the instruction failed to narrow the meaning enough to cure the defect. This error goes to the ultimate sentence, Sochor claims, because a Florida jury is “the sentencer" for Clemons purposes, or at the least one of “the sentencer's" constituent elements. This is so because the trial judge does not render wholly independent judgment, but must accord deference to the jury's recommendation. See Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (life verdict); Grossman v. State, 525 So. 2d 833, 839, n. 1 (Fla. 1988) (death verdict), cert. denied, 489 U. S. 1071 (1989). Hence, the argument runs, error at the jury stage taints a death sentence, even if the trial judge's decision is otherwise error free. Cf. Baldwin v. Alabama, 472 U. S. 372, 382 (1985). While Sochor concedes that the general advisory jury verdict does not reveal whether the jury did find and weigh the heinousness factor, he seems to argue that the possibility that the jury weighed an invalid factor is enough to require cure.

This argument faces a hurdle, however, in the rule that this Court lacks jurisdiction to review a state court's resolution of an issue of federal law if the state court's decision rests on an adequate and independent state ground, see Herb v. Pitcairn, 324 U. S. 117, 125–126 (1945), as it will if the state court's opinion “indicates clearly and expressly” that the state ground is an alternative holding, see Michigan v. Long, 463 U. S. 1032, 1041 (1983); see also Harris v. Reed, 489 U. S. 255, 264, n. 10 (1989); Fox Film Corp. v. Muller, 296 U. S. 207, 210 (1935).

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