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Opinion of REHNQUIST, C. J.
that resentencing was unnecessary. After reaching that conclusion, the court cited four cases in which it had invalidated aggravating factors but had upheld the death sentences, having found that the inclusion of those aggravators made no difference to the weighing process. One of the cases cited in fact made explicit mention of harmless-error analysis. Holton v. State, 573 So. 2d 284, 293 (1990) (“Under the circumstances of this case, we cannot say there is any reasonable likelihood the trial court would have concluded that the three valid aggravating circumstances were outweighed by the mitigating factors. We find the error was harmless beyond a reasonable doubt”) (citation omitted). See supra, at 542–543.
In my mind, it is no stretch to conclude that the court saw this case for what it is—a paradigmatic example of the situation where the invalidation of an aggravator makes absolutely no difference in the sentencing calculus. We have previously observed that the invalidation of an aggravating circumstance results in the removal of a “thumb ... from death's side of the scale.” Stringer v. Black, 503 U. S. 222, 232 (1992). Precisely for this reason, we require appellate courts to either reweigh the evidence or perform harmlesserror analysis if they seek to affirm a death sentence after invalidating an aggravator. In a case such as this, however, where there is not so much as a thumbnail on the scale in favor of mitigation, I would not require appellate courts to adhere to any particular form of words to demonstrate that which is evident. If the trial judge in this case had eliminated the "coldness” aggravator from the weighing process, and had balanced the three valid aggravators against the complete absence of mitigating evidence, the absent mitigating evidence would still have failed to outweigh the aggravating evidence, and the sentence would still have been death. Although it did so cursorily, I am convinced that the Supreme Court of Florida found the inclusion of the invalid "coldness” factor harmless beyond a reasonable doubt.
Opinion of STEVENS, J.
It seems that the omission of the words "harmless error" from the opinion below is the root of this Court's dissatisfaction with it. In all likelihood, the Supreme Court of Florida will reimpose Sochor's death sentence on remand, perhaps by appending a sentence using the talismanic phrase "harmless error.” Form will then correspond to substance, but this marginal benefit does not justify our effort to supervise the opinion writing of state courts. I would therefore affirm the judgment below.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, concurring in part and dissenting in part.
We granted certiorari to consider two questions. The Court answers the first question in Parts III-B and IV of its opinion, see ante, at 538–540, which I join. I do not, however, agree with the Court's treatment of the plain error that occurred when the trial judge instructed the jury at the penalty phase of the trial. See ante, at 532–534. Florida argues that this error was harmless because the death sentence was imposed by the judge rather than the jury. The Court today does not address this argument because it concludes that petitioner waived the error by failing to object to the instruction. I disagree with this Court in its effort
1 Petitioner included four questions in his petition for writ of certiorari; however, the Court limited its grant to a consideration of questions two and four, which petitioner framed as follows:
“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, where 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?”
“4. Did the application of Florida's 'especially heinous, atrocious, or cruel aggravating circumstance at bar violate the Eighth and Fourteenth Amendments?” Pet. for Cert. ii.
Opinion of STEVENS, J.
to avoid the issue and with the Florida Supreme Court in its appraisal of the error.
I There is no dispute that the instruction prescribing the socalled heinous, atrocious, or cruel aggravating circumstance (or heinousness factor, according to the Court's nomenclature)2 was unconstitutionally vague under our decision in Maynard v. Cartwright, 486 U. S. 356 (1988). In Cartwright, the Court explained that “[t]o say that something is ‘especially heinous' merely suggests that the individual jurors should determine that the murder is more than just ‘heinous,' whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is “especially heinous.”” Id., at 364 (citation omitted). Although a state court may adopt a limiting construction of a vague capital sentencing aggravating circumstance to give meaningful guidance to the sentencer, see id., at 360, 365; Walton v. Arizona, 497 U. S. 639, 653 (1990); Lewis v. Jeffers, 497 U. S. 764, 778–779 (1990); Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion), or a state appellate court might apply a limiting definition of the aggravating circumstance to the facts presented, see Cartwright, 486 U. S., at 364; Walton, 497 U. S., at 653; Jeffers, 497 U. S., at 778–779; Godfrey, 446 U. S., at 429, the Florida Supreme
2 The trial judge gave the following instruction with respect to the heinous, atrocious, or cruel aggravating circumstance: “The aggravating circumstances that you may consider are limited to any of the following that are established by the evidence. ... [N]umber three, the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel.” App. 326–327.
3 See Walton v. Arizona, 497 U. S. 639, 653 (1990) (“It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face"); Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (“There is nothing in these few words, ['outrageously or wantonly vile, horrible and inhuman,'] standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence").
Opinion of STEVENS, J.
Court has failed to do so here. In Proffitt v. Florida, 428 U. S. 242, 255,256 (1976), this Court approved the limiting construction adopted by the Florida Supreme Court for the heinousness factor; 4 however, the guidance given in State v. Dixon, 283 So. 2d 1 (Fla. 1973), was certainly not provided in the bare bones of the instruction given by the trial court in this case. See n. 2, supra.
II Petitioner's failure to object to the instruction at trial did not deprive the Florida Supreme Court or this Court of the power to correct the obvious constitutional error. First, petitioner did object to the vagueness of this aggravating circumstance in a Motion To Declare Section 921.141, Florida Statutes Unconstitutional Re: Aggravating and Mitigating Circumstances at the start of trial, see App. 8, 10;5 however, that motion was denied. See 1 Tr. 9. Second, the Florida Supreme Court, though noting that petitioner had failed to make a contemporaneous objection to the instruction at the time of trial, nevertheless went on to reach the merits of petitioner's claim. See 580 So. 2d 595, 603 (1991). Thus, the Florida Supreme Court, far from providing us with a plain statement that petitioner's claim was procedurally barred, see Michigan v. Long, 463 U. S. 1032, 1042 (1983), has merely said that the claim was “not preserved for appeal,” 580 So. 2d, at 602, and has given even further indica
4 In State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert. denied, 416 U. S. 943 (1974), the Florida courts had construed the heinousness factor to apply only to “the conscienceless or pitiless crime which is unnecessarily torturous to the victim." 283 So. 2d, at 9.
5 In particular, petitioner alleged: “Almost any capital felony would appear especially cruel, heinous and atrocious to the layman, particularly any felony murder. Examination of the widespread application of this circumstance indicates that reasonable and consistent application is impossible. This standard is vague and overbroad and provides no basis for distinguishing one factual situation from another. Godfrey v. Georgia, 446 U. S. 420 (1980).” App. 10.
Opinion of STEVENS, J.
tion that petitioner's claim was not procedurally barred by proceeding to the merits, albeit in the alternative. Third, and most important, the state court may review a fundamental error despite a party's failure to make a contemporaneous objection in the trial court, and it unquestionably has the power to review this error even though the error may not have been properly preserved for appeal.? As the Florida Supreme Court explained, “[f]undamental error has been defined as 'error which goes to the foundation of the case or goes to the merits of the cause of action,'” and although it is to be applied “very guardedly,'” it nevertheless is to be applied in those “rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Ray v. State, 403 So. 2d 956, 960 (1981) (citations omitted). Presumably because the
6 See, e. g., Ray v. State, 403 So. 2d 956, 960 (Fla. 1981) (“This Court has indicated that for error to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process”); Castor v. State, 365 So. 2d 701, 704, n. 7 (Fla. 1978) (same); State v. Smith, 240 So. 2d 807, 810 (Fla. 1970) (same).
? The Florida Supreme Court's statement that none of the alleged errors in the jury instructions had been “preserved for appeal,” 580 So. 2d 595, 602 (1991), merely raised the question whether they should nevertheless be reviewed under the “fundamental error" exception. That question was answered by the court's statement that petitioner's claims “have no merit.” Id., at 603.
8 The Court clearly misconstrues my point about fundamental error if it understands me to be saying that all errors concerning an improper instruction on the heinous, atrocious, or cruel aggravating circumstance “would automatically be ‘fundamental.”” Ante, at 535, n. Quite simply, my point is not that such error necessarily constitutes fundamental error, but rather, that such error can be the subject of fundamental error review. In other words, the Florida Supreme Court is not without power, even when the defendant has failed to raise an objection at trial, to consider whether such error constitutes fundamental error. Although the Florida Supreme Court may not necessarily find fundamental error in the particular instance, it is, nevertheless, willing and able to consider whether fundamental error has occurred. See, e.g., Walton v. State, 547 So. 2d 622, 625-626 (Fla. 1989) (“Absent fundamental error, failure to object to the