Lowenfield v. Phelps , 108 S. Ct. 546 ( 1988 )

Chief Justice Rehnquist

delivered the opinion of the Court. ^†

Petitioner, sentenced to death by the Louisiana state courts, makes two federal constitutional attacks on his sentence. He first contends that the trial court impermissibly coerced the jury to return a sentence of death by inquiries it made to the jury and a supplemental charge which it gave to the jury following the receipt of a communication from that body. Petitioner’s second contention is that the death sentence violates the Eighth Amendment to the United States Constitution because the single “aggravating circumstance” found by the jury and upheld by the Supreme Court of Louisiana merely duplicates an element of the underlying offense of first-degree murder of which he was convicted at the guilt stage. We reject both of these contentions.

I

Petitioner was charged with killing a woman with whom he had lived, three members of her family, and one of her male friends. The jury found petitioner guilty of two counts of manslaughter and three counts of first-degree murder; an essential element of the latter verdicts was a finding that petitioner intended “to kill or inflict great bodily harm upon more than one person.” La. Rev. Stat. Ann. §14:30A(3) (West 1986).

The jury commenced its sentencing deliberations on the same day that it returned the verdict of guilt, and the judge’s charge to them in this second phase of the trial included the familiar admonition that the jurors should consider the views of others with the objective of reaching a verdict, but that they should not surrender their own honest beliefs in doing so. The court also charged the jury that if it were unable to reach a unanimous recommendation, the court would impose a sentence of life imprisonment without the possibility of probation, parole, or suspension of sentence.

The jury was allowed to retire late in the evening, and reconvene the next day. During the afternoon of that day a note came from the foreman of the jury stating that the jury was unable to reach a decision at that time, and requesting that the court again advise the jury as to its responsibilities. The jury was called back. The court provided a piece of paper to each juror and asked each to write on the paper his or her name and the answer to the question whether “further deliberations would be helpful in obtaining a verdict.” The jurors complied, and were asked to retire to the jury room. The papers revealed eight answers in the affirmative — that more deliberation would be helpful — and four in the negative. Defense counsel renewed a previously made motion for a mistrial, arguing that the jury was obviously hung. The trial court denied the motion, noting that this was the first sign that the jury was having trouble reaching a verdict in the penalty phase. The court directed that as previously agreed upon the jury would return to the courtroom and be instructed again as to its obligations in reaching a verdict.

When the jurors returned to the courtroom a new note from them was given to the judge. This note stated that some of the jurors had misunderstood the question previously asked. The judge polled the jury again using the same method but changing the question slightly; the judge asked, “Do you feel that any further deliberations will enable you to arrive at a verdict?” App. 55. This time 11 jurors answered in the affirmative and 1 in the negative. The court then reinstructed the jury:

“Ladies and Gentlemen, as I instructed you earlier if the jury is unable to unanimously agree on a recommendation the Court shall impose the sentence of Life Imprisonment without benefit of Probation, Parole, or Suspension of Sentence.

“When you enter the jury room it is your duty to consult with one another to consider each other’s views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual judgment.

“Each of you must decide the case for yourself but only after discussion and impartial consideration of the case with your fellow jurors. You are not advocates for one side or the other. Do not hesitate to reexamine your own views and to change your opinion if you are convinced you are wrong but do not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.” Id., at 56.

Defense counsel did not object to either poll, to the manner in which the polls were conducted, or to the supplemental instruction. The jury resumed its deliberations and in 30 minutes returned with a verdict sentencing petitioner to death on all three counts of first-degree murder. In support of all three sentences, the jury found the statutory aggravating circumstance of “knowingly creating] a risk of death or great bodily harm to more than one person.” La. Code Crim. Proc. Ann., Art. 905.4(d) (West 1984). One death sentence was additionally supported by the aggravating circumstance that “the victim was a witness in a prosecution against the defendant. ...” Art. 905.4(h).

On direct appeal, the Louisiana Supreme Court upheld the convictions and sentences. State v. Lowenfield, 495 So. 2d 1245 (1985), cert. denied, 476 U. S. 1153 (1986). The court ruled that the evidence was insufficient to support the aggravating circumstance that the victim was a witness in a prosecution against the defendant, but concluded that the remaining aggravating circumstance was established by the evidence and was sufficient to support the sentences. 495 So. 2d, at 1256-1258. The court went on to hold that the trial court had not abused its discretion in declining to declare a mistrial during sentencing when the jury indicated that it was having difficulty reaching a verdict. “This court has rejected the construction that the court is required to declare a deadlock at the first sign of trouble.” Id., at 1259. Finally, the court rejected petitioner’s argument that the judge had coerced the sentence recommendations from the jury. “It is a well settled proposition that when the court is informed by a jury that they are having difficulty in agreeing, it is not error for the court to impress upon them the importance of the case, urge them to come to agreement, and send them back for further deliberation.” Ibid.

Subsequently petitioner sought habeas corpus from the United States District Court for the Eastern District of Louisiana. Petitioner raised, inter alia, the two issues now before this Court: whether a sentence of death may validly rest upon a single aggravating circumstance that is a necessary element of the underlying offense of first-degree murder, and whether the judge had coerced the sentence verdicts from the jury. The District Court denied relief and a divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. 817 F. 2d 285 (1987). The panel unanimously rejected the aggravating circumstance claim. Id., at 289. The majority went on to conclude: “there is no showing of coercion; the record certainly does not demonstrate coercion sufficient to render the trial fundamentally unfair.” Id., at 293. The dissenting judge argued that the combination of the supplemental instruction to the jury and the polling of the jury as to the usefulness of further deliberations constituted improper coercion. Id., at 299-303.

II

Our review of petitioner’s contention that the jury was improperly coerced requires that we consider the supplemental charge given by the trial court “in its context and under all the circumstances.” Jenkins v. United States, 380 U. S. 445, 446 (1965) (per curiam). The use of a supplemental charge has long been sanctioned. Nearly a century ago in Allen v. United States, 164 U. S. 492 (1896), this Court reviewed a charge similar but by no means identical to that given to the Louisiana jury here, and concluded that it was not reversible error even within the federal system. The defendant in that case had been sentenced to death by Judge Parker in the Western District of Arkansas, exercising a jurisdiction unique among federal courts. The judge’s charge is not set out verbatim in the opinion of this Court, but it differed from the charge given in the present case in that the Allen charge urged the minority to consider the views of the majority, and ask themselves whether their own views were reasonable under the circumstances. This Court upheld the conviction and sentence against the defendant’s claim of coercion, saying:

“The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself.” Id., at 501-502.

The continuing validity of this Court’s observations in Allen are beyond dispute, and they apply with even greater force in a case such as this, where the charge given, in contrast to the so-called “traditional Allen charge,” does not speak specifically to the minority jurors.¹ But in this case one of the purposes served by such a charge — the avoidance of the societal costs of a retrial — is not present because Louisiana law provides that if the jury hangs, the court shall impose a sentence of life imprisonment. La. Code Crim. Proc. Ann., Art. 905.8 (West 1984). Petitioner naturally urges that this difference makes the charge here impermissible under the Due Process Clause and the Eighth Amendment. The difference between the division of function between the jury and judge in this case and the division in Allen obviously weighs in the constitutional calculus, but we do not find it dis-positive. The State has in a capital sentencing proceeding a strong interest in having the jury “express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968). Surely if the jury had returned from its deliberations after only one hour and informed the court that it had failed to achieve unanimity on the first ballot, the court would incontestably have had the authority to insist that they deliberate further. This is true even in capital cases such as this one and Allen, even though we are naturally mindful in such cases that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U. S. 586, 604 (1978).

Petitioner relies on this Court’s decision in Jenkins v. United States, supra,² but we think that case affords him no help. There the jury had sent a note to the judge to the effect that it was unable to agree upon a verdict; the judge then gave additional instructions to the jury, in the course of which he said: “‘You have got to reach a decision in this case.’” Id., at 446. This Court concluded that “in its context and under all the circumstances the judge’s statement had the coercive effect attributed to it.” Ibid. The difference between the language used there and the language used in the present case is sufficiently obvious to show the fallacy of petitioner’s reliance. The same is true of the colloquy between the judge and the foreman of the jury in United States v. United States Gypsum Co., 438 U. S. 422, 459 (1978), upon which petitioner also relies.

Petitioner argues, however, that the coercive effect of the supplemental charge was exacerbated by inquiries made to the jury by the trial court. In Brasfield v. United States, 272 U. S. 448 (1926), the trial court had, after deliberations stalled, inquired as to how the jury was divided, and was informed simply that the jury stood nine to three. The jury resumed deliberations and subsequently found the defendants guilty. This Court concluded that the inquiry into the jury’s numerical division necessitated reversal because it was generally coercive and almost always brought to bear “in some degree, serious although not measurable, an improper influence upon the jury.” Id., at 450. Although the decision in Brasfield was an exercise of this Court’s supervisory powers,³ it is nonetheless instructive as to the potential dangers of jury polling.

Petitioner’s attempt to fit the instant facts within the holding of Brasfield is, however, unavailing. Here the inquiry as to the numerical division of the jury was not as to how they stood on the merits of the verdict, but how they stood on the question of whether further deliberations might assist them in returning a verdict. There is no reason why those who may have been in the minority on the merits would necessarily conclude that further deliberation would not be helpful, or that those in the majority would necessarily conclude otherwise. The two questions are clearly independent of one another. We believe the type of question asked by the trial court in this case is exactly what the Court in Brasfield implicitly approved when it stated: “[An inquiry as to numerical division] serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division.” Ibid.

We are mindful that the jury returned with its verdict soon after receiving the supplemental instruction, and that this suggests the possibility of coercion. United States Gypsum Co., supra, at 462. We note, however, that defense counsel did not object to either the polls or the supplemental instruction. We do not suggest that petitioner thereby waived this issue, Wainwright v. Witt, 469 U. S. 412, 431, n. 11 (1985), but we think such an omission indicates that the potential for coercion argued now was not apparent to one on the spot.⁴ Id., at 430-431, and n. 11.

We hold that on these facts the combination of the polling of the jury and the supplemental instruction was not “coercive” in such a way as to deny petitioner any constitutional right. By so holding we do not mean to be understood as saying other combinations of supplemental charges and polling might not require a different conclusion. Any criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body. For the reasons stated we hold there was no coercion here.

Ill

Petitioner advances as a second ground for vacating his sentence of death that the sole aggravating circumstance found by the jury at the sentencing phase was identical to an element of the capital crime of which he was convicted. Petitioner urges that this overlap left the jury at the sentencing phase free merely to repeat one of its findings in the guilt phase, and thus not to narrow further in the sentencing phase the class of death-eligible murderers. Upon consideration of the Louisiana capital punishment scheme in the light of the decisions of this Court we reject this argument.

Louisiana has established five grades of homicide: first-degree murder, second-degree murder, manslaughter, negligent homicide, and vehicular homicide. La. Rev. Stat. Ann. § 14:29 (West 1986). Second-degree murder includes intentional murder and felony murder, and provides for punishment of life imprisonment without the possibility of parole. §14:30.1.⁵ Louisiana defines first-degree murder to include a narrower class of homicides:

“First degree murder is the killing of a human being:

“(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;

“(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;

“(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or

“(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.

“(5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve years.” § 14:30A.

An individual found guilty of first-degree murder is sentenced by the same jury in a separate proceeding to either death or life imprisonment without benefit of parole, probation, or suspension of sentence. § 14:30C. “A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed.” La. Code Crim. Proc. Ann., Art. 905.3 (West 1984). Louisiana has established 10 statutory aggravating circumstances. Art. 905.4.⁶ If the jury returns a sentence of death, the sentence is automatically reviewable for excessiveness by the Supreme Court of Louisiana. Art. 905.9.

Petitioner was found guilty of three counts of first-degree murder under § 14.30. A.(3): “[T]he offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” The sole aggravating circumstance both found by the jury and upheld by the Louisiana Supreme Court was that “the offender knowingly created a risk of death or great bodily harm to more than one person.” Art. 905.4(d). In these circumstances, these two provisions are interpreted in a “parallel fashion” under Louisiana law. See State v. Williams, 480 So. 2d 721, 726-727 (La. 1985). Petitioner’s argument that the parallel nature of these provisions requires that his sentences be set aside rests on a mistaken premise as to the necessary role of aggravating circumstances.

To pass constitutional muster, a capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U. S. 862, 877 (1983); cf. Gregg v. Georgia, 428 U. S. 153 (1976). Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. Id., at 162-164 (reviewing Georgia sentencing scheme); Proffitt v. Florida, 428 U. S. 242, 247-250 (1976) (reviewing Florida sentencing scheme). By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition. Zant, supra, at 878 (“[Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty”).

In Zant v. Stephens, supra, we upheld a sentence of death imposed pursuant to the Georgia capital sentencing statute, under which “the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.” Id., at 874. We found no constitutional deficiency in that scheme because the aggravating circumstances did all that the Constitution requires.

The use of “aggravating circumstances” is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase. Our opinion in Jurek v. Texas, 428 U. S. 262 (1976), establishes this point. The Jurek Court upheld the Texas death penalty statute, which, like the Louisiana statute, narrowly defined the categories of murders for which a death sentence could be imposed. If the jury found the defendant guilty of such a murder, it was required to impose death so long as it found beyond a reasonable doubt that the defendant’s acts were deliberate, the defendant would probably constitute a continuing threat to society, and, if raised by the evidence, the defendant’s acts were an unreasonable response to the victim’s provocation. Id., at 269. We concluded that the latter three elements allowed the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provided for jury discretion. Id., at 271-274. But the opinion announcing the judgment noted the difference between the Texas scheme, on the one hand, and the Georgia and Florida schemes discussed in the cases of Gregg, supra, and Proffitt, supra:

‘While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. ... In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. . . . Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option — even potentially — for a smaller class of murders in Texas.” 428 U. S., at 270-271 (citations omitted).

It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. See also Zant, supra, at 876, n. 13, discussing Jurek and concluding: “[I]n Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution.”

Here, the “narrowing function” was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that “the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more.

The judgment of the Court of Appeals for the Fifth Circuit is accordingly

Affirmed.

† Justice Stevens joins Part III of this opinion, except for the last sentence.

1 All of the Federal Courts of Appeals have upheld some form of a supplemental jury charge. See United States v. Angiulo, 485 F. 2d 37 (CA1 1973); United States v. Burke, 700 F. 2d 70, 80 (CA2), cert. denied, 464 U. S. 816 (1983); United States v. Fioravanti, 412 F. 2d 407, 414-420 (CA3), cert. denied sub nom. Panaccione v. United States, 396 U. S. 837 (1969); United States v. Sawyers, 423 F. 2d 1335 (CA4 1970); United States v. Kelly, 783 F. 2d 575, 576-577 (CA5), cert. denied, 479 U. S. 889 (1986); United States v. Scott, 547 F. 2d 334 (CA6 1977); United States v. Silvern, 484 F. 2d 879 (CA7 1973) (en banc); Potter v. United States, 691 F. 2d 1275 (CA8 1982); United States v. Bonam, 772 F. 2d 1449, 1450 (CA9 1985); United States v. McKinney, 822 F. 2d 946 (CA10 1987); United States v. Rey, 811 F. 2d 1453 (CA11), cert. denied, 484 U. S. 830 (1987); United States v. Thomas, 146 U. S. App. D. C. 101, 449 F. 2d 1177 (1971) (en banc).

2 We note that our ruling in Jenkins v. United States was based on our supervisory power over the federal courts, cf. United States v. Hale, 422 U. S. 171, 180, n. 7 (1975), and not on constitutional grounds. The Jenkins Court cited no provision of the Constitution, but rather relied upon other cases involving the exercise of supervisory powers. 380 U. S., at 446.

3 Our decision in Brasfield makes no mention of the Due Process Clause or any other constitutional provision. The Federal Courts of Appeals have uniformly rejected the notion that Brasfield’s per se reversal approach must be followed when reviewing state proceedings on habeas corpus. E. g., Williams v. Parke, 741 F. 2d 847, 851 (CA6 1984), cert. denied, 470 U. S. 1029 (1985); Locks v. Sumner, 703 F. 2d 403, 405-407 (CA9), cert. denied, 464 U. S. 933 (1983).

4 The mistrial motions referred to by the dissent, post, at 254, n. 3, were unrelated to the actions of the trial court — the polls and the supplemental instruction — that now form the core of petitioner’s argument and the dissent’s attack, and there is no reason defense counsel would have been dissuaded from objecting to these latter actions because of the unsuccessful mistrial motions.

5 “Second degree murder is the killing of a human being:

“(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

“(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.” La. Rev. Stat. Ann. §14:30.1 (West 1986).

6 “The following shall be considered aggravating circumstances:

“(a) the offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or simple robbery;

“(b) the victim was a fireman or peace officer engaged in his lawful duties;

“(c) the offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping or has a significant prior history of criminal activity;

“(d) the offender knowingly created a risk of death or great bodily harm to more than one person;

“(e) the offender offered or has been offered or has given or received anything of value for the commission of the offense;

“(f) the offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;

“(g) the offense was committed in an especially heinous, atrocious, or cruel manner; or

“(h) the victim was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eyewitness to a crime alleged to have been committed by the defendant or possessed other material evidence against the defendant.

“(i) the victim was a correctional officer or any other employee of the Louisiana Department of Corrections who, in the normal course of his employment was required to come in close contact with persons incarcerated in a state prison facility, and the victim was engaged in his lawful duties at the time of the offense.” La. Code Crim. Proc. Ann., Art. 905.4 (West 1984).