Baldwin v. Alabama

472 U.S. 372, 105 S. Ct. 2727, 86 L. Ed. 2d 300, 1985 U.S. LEXIS 106, 53 U.S.L.W. 4759

• Court: Supreme Court of the United States
• Decided: June 17, 1985
• Docket: 84-5743
• Status: Published

Opinions

Justice Blackmun

delivered the opinion of the Court.

Between 1976 and 1981, an Alabama statute required a jury that convicted a defendant of any one of a number of specified crimes “with aggravation” to “fix the punishment at death.” Ala. Code § 13-ll-2(a) (1975).¹ The “sentence” imposed by the jury, however, was not dispositive. Instead, “[notwithstanding the fixing of the punishment at death by the jury,” §13-11-4, the trial judge then was to hear evidence of aggravating and mitigating circumstances and, after weighing those circumstances, to sentence the defendant to death or to life imprisonment without parole.

This case concerns the constitutionality of the peculiar and unusual requirement of the 1975 Alabama Act that the jury “shall fix the punishment at death,” even though the trial judge is the actual sentencing authority.² The United States Court of Appeals for the Eleventh Circuit ruled that the scheme was facially unconstitutional. Ritter v. Smith, 726 F. 2d 1505, 1515-1517, cert. denied, 469 U. S. 869 (1984). Shortly thereafter, however, the Supreme Court of Alabama, with two dissenting votes, ruled to the contrary in the present case. Ex parte Baldwin, 456 So. 2d 129, 138-139 (1984). We granted certiorari to resolve this significant conflict. 469 U. S. 1085 (1984).

I

A

The facts are sordid, but a brief recital of them must be made. Petitioner Brian Keith Baldwin, then 18 years of age, escaped from a North Carolina prison camp on Saturday, March 12,1977. That evening, he and a fellow escapee, Edward Horsley, came upon 16-year-old Naomi Rolon, who was having trouble with her automobile. The two forcibly took over her car and drove her to Charlotte, N. C. There, both men attempted to rape her, petitioner sodomized her, and the two attempted to choke her to death. They then ran over her with the car, locked her in its trunk, and left her there while they drove through Georgia and Alabama. Twice, when they heard the young woman cry out, they stopped the car, opened the trunk, and stabbed her repeatedly. On Monday afternoon, they stole a pickup truck, drove both vehicles to a secluded spot, and, after again using the car to run over the victim, cut her throat with a hatchet. She died after this 40-hour ordeal.

Petitioner was apprehended the following day driving the stolen truck. He was charged with theft. While in custody, he confessed to the victim’s murder and led the police to her body. He was then indicted for “robbery . . . when the victim is intentionally killed,” a capital offense, § 13-11-2(a)(2), and was tried before a jury in Monroe County. At the close of the evidence regarding guilt or innocence, the judge instructed the jury that if it found the petitioner guilty, “the Legislature of the State of Alabama has said this is a situation [in] which . . . the punishment would be death by electrocution,” Tr. 244-245, and the jury therefore would be required to sentence petitioner to death. Id., at 242. The jury found petitioner guilty, in the terms of the statute, of robbery with the aggravated circumstance of intentionally killing the victim, and returned a verdict form that stated: “We, the Jury, find the defendant guilty as charged in the indictment and fix his punishment at death by electrocution.” App. 4.

B

Under Alabama’s 1975 Death Penalty Act, once a defendant was convicted of any one of 14 specified aggravated offenses, see Ala. Code §13-ll-2(a) (1975), and the jury returned the required death sentence, the trial judge was obligated to hold a sentencing hearing:

“[T]he court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7.” § 13-11-3.

The judge was then required to sentence the defendant to death or to life imprisonment without parole:

“Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death.” § 13-11-4.

If the court imposed a death sentence, it was required to set forth in writing the factual findings from the trial and the sentencing hearing, including the aggravating and mitigating circumstances that formed the basis for the sentence. Ibid. The judgment of conviction and sentence of death were subject to automatic review by the Court of Criminal Appeals, and, if that court affirmed, by the Supreme Court of Alabama. §§ 13-11-5, 12-22-150; Ala. Rule App. Proc. 39(c). See Beck v. State, 396 So. 2d 645, 664 (Ala. 1981); Evans v. Britton, 472 F. Supp. 707, 713-714, 723-724 (SD Ala. 1979), rev’d on other grounds, 628 F. 2d 400 (CA5 1980), 639 F. 2d 221 (1981), rev’d sub nom. Hopper v. Evans, 456 U. S. 605 (1982).

C

Following petitioner’s conviction, the trial judge held the sentencing hearing required by § 13-11-3. The State reintroduced the evidence submitted at trial, and introduced petitioner’s juvenile and adult criminal records, as well as Edward Horsley’s statement regarding the crime. Petitioner then took the stand and testified that he had “a hard time growing up”; that he left home at the age of 13 because his father did not like him to come home late at night; that he dropped out of school after the ninth grade; that he made a living by “street hustling”; that he had been arrested approximately 30 times; and that he was a drug addict. App. 8-10. At the conclusion of petitioner’s testimony, the trial judge stated:

“Brian Keith Baldwin, today is the day you have in court to tell this judge whatever is on your mind . . . , now is your time to tell the judge anything that you feel like might be helpful to you in the position that you find yourself in. I want to give you every opportunity in the world that I know about. . . . Anything you feel like you can tell this Judge that will help you in your present position.” Id., at 12.

Petitioner then complained about various aspects of his trial, and concluded: “I ain’t saying I’m guilty but I might be guilty for murder but I ain’t guilty for robbery down here. That’s all I got to say.” Id., at 13.

The judge stated that “having considered the evidence presented at the trial and at said sentence hearing,” id., at 17-18, the court found the following aggravating circumstances: the capital offense was committed while petitioner was under a sentence of imprisonment in the State of North Carolina from which he had escaped; petitioner previously had pleaded guilty to a felony involving the use of violence to the person; the capital offense was committed while petitioner was committing a robbery or in flight after the robbery; and the offense was especially heinous, atrocious, or cruel.³ The judge found that petitioner’s age — 18 at the time of the crime — was the only mitigating circumstance. Id., at 18. He then stated:

“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.” Ibid.

The Supreme Court of Alabama eventually affirmed the conviction and sentence. 456 So. 2d 129 (1984).⁴ In his argument to that court, petitioner contended that the 1975 Act was facially invalid. Tracking the reasoning of the Eleventh Circuit in Ritter v. Smith, 726 F. 2d, at 1516-1517, he argued that the jury’s mandatory sentence was unconstitutional because it was unguided, standardless, and reflected no consideration of the particular defendant or crime, and that the judge’s sentence was unconstitutional because it was based in part upon consideration of the impermissible jury sentence and was infected by it. The court rejected petitioner’s arguments, holding that even though the jury had no discretion regarding the “sentence” it would impose, the sentencing procedure was saved by the fact that it was the trial judge who was the true sentencing authority, and he considered aggravating and mitigating circumstances before imposing sentence. 456 So. 2d, at 139.⁵

I — I I — I

If the jury’s “sentence” were indeed the dispositive sentence, the Alabama scheme would be unconstitutional under the principles announced in Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), and Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976) (plurality opinion). See also Roberts (Harry) v. Louisiana, 431 U. S. 633 (1977). In Woodson, the Court held that North Carolina’s sentencing scheme, which imposed a mandatory death sentence for a broad category of homicidal offenses, violated the Eighth and Fourteenth Amendments in three respects. First, such mandatory schemes offend contemporary standards of decency, as evidenced by the frequency with which jurors avoid the imposition of mandatory death sentences by disregarding their oaths and refusing to convict, and by the consistent movement of the States and Congress away from such schemes. 428 U. S., at 288-301. Second, by refusing to convict defendants who the jurors think do not deserve the death penalty, juries exercise unguided and unchecked discretion regarding who will be sentenced to death. Id., at 302-303. Third, such mandatory schemes fail to allow particularized consideration of the character and record of the defendant and the circumstances of the offense. Id., at 303-305. Alabama’s requirement that the jury impose a mandatory sentence for a wide range of homicides, standing alone, would suffer each of those defects.

The jury’s mandatory “sentence,” however, does not stand alone under the Alabama scheme. Instead, as has been described above, the trial judge thereafter conducts a separate hearing to receive evidence of aggravating and mitigating circumstances, and determines whether the aggravating circumstances outweigh the mitigating circumstances. The judge’s discretion is guided by the requirement that the death penalty be imposed only if the judge finds the aggravating circumstance that serves to define the capital crime — in this case the fact that the homicide took place during the commission of a robbery — and only if the judge finds that the definitional aggravating circumstance, plus any other specified aggravating circumstance,⁶ outweighs any statutory and nonstatutory mitigating circumstances. § 13-11-4. Petitioner accordingly does not argue that the judge’s discretion under § 13-11-4 is not “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Nor is there any issue before this Court that the 1975 Act did not allow “the type of individualized consideration of mitigating factors” by the sentencing judge that has been held constitutionally indispensable in capital cases.⁷ Lockett v. Ohio, 438 U. S. 586, 606 (1978) (plurality opinion); see also Eddings v. Oklahoma, 455 U. S. 104 (1982); Woodson v. North Carolina, 428 U. S., at 304 (plurality opinion).

Petitioner’s challenge to the Alabama scheme rests instead on the provision of the 1975 Act that allows the judge to weigh “the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury” in determining whether death is the appropriate sentence. §13-11-4. This Court has stated that a death sentence based upon consideration of “factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant,” would violate the Constitution. Zant v. Stephens, 462 U. S. 862, 885 (1983). Relying upon Zant, petitioner contends that, because the jury’s mandatory “sentence” would be unconstitutional standing alone, it is an impermissible factor for the trial judge to consider, as the statute appears to require, in the sentencing process. That argument conceivably might have merit if the judge actually were required to consider the jury’s “sentence” as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Florida, 428 U. S. 242 (1976), and if the judge were obligated to accord some deference to it. The jury’s verdict is not considered in that fashion, however, as the Alabama appellate courts’ construction of the Act, as well as the judge’s statements regarding the process by which he arrived at the sentence, so definitely indicates.

The language of § 13-11-4, to be sure, in so many words does not preclude the sentencing judge from considering the jury’s “sentence” in determining whether the death penalty is appropriate. The first clause of the section — “the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole” — does not authorize or require the court to weigh the jury’s “sentence” in determining whether to refuse to impose the death penalty. The second clause — “or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death”— does seem to authorize consideration of the jury’s “sentence.” It is not clear whether the second clause allows consideration of the jury’s “sentence” only if the weighing of the aggravating and mitigating circumstances authorized in the first clause has indicated that the “sentence” should not be rejected, or whether the second clause allows the judge to ignore the first clause and count the jury’s “sentence” as a factor, similar to an aggravating circumstance, weighing in favor of the death penalty. We therefore look to the Alabama courts’ construction of § 13-11-4. See Proffitt v. Florida, supra; Jurek v. Texas, 428 U. S. 262, 272-273 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

The Alabama appellate courts have interpreted the 1975 Act expressly to mean that the sentencing judge is to impose a sentence without regard to the jury’s mandatory “sentence.” The Alabama Court of Criminal Appeals has stated: “The jury’s function is only to find guilt or innocence. The jury is not the sentencing authority.” Jacobs v. State, 361 So. 2d 607, 631 (1977), aff’d, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122 (1979). Indeed, the court has gone so far as to state:

“No sentence exists until the pronouncement by the trial judge at the conclusion of the sentence hearing. It is for this reason the court cannot be said to be commuting a sentence of death imposed by the jury, but, in truth and in fact, it is sentencing the accused after a jury’s finding of guilt.” Beck v. State, 365 So. 2d 985, 1005, aff’d, 365 So. 2d 1006 (Ala. 1978), rev’d on other grounds, 447 U. S. 625 (1980).

The court further has described the judge’s role as follows:

“The sentencing hearing is one of the most important and critical stages under Alabama’s death penalty law. The guilt stage has passed. Now an experienced trial judge must consider the particularized circumstances surrounding the offense and the offender and determine if the accused is to die or be sentenced to life imprisonment without parole. . . . The trial evidence must be reviewed to determine all of the aggravating circumstances leading up to and culminating in the death of the victim and then all the mitigating circumstances must be considered in determining if any outweigh the aggravating circumstances so found in the trial court’s findings of fact.” Richardson v. State, 376 So. 2d 205, 224 (1978), aff’d, 376 So. 2d. 228 (Ala. 1979).

Conspicuously absent from the court’s description of the judge’s duty is any mention of according weight or deference to the jury’s “sentence.”

The Supreme Court of Alabama agrees that “the jury is not the sentencing authority in . . . Alabama,” and has described the sentencing judge not as a reviewer of the jury’s “sentence,” but as the sentencer:

“In Alabama, the jury is not the body which finally determines which murderers must die and which must not. In fact, Alabama’s statute mandatorily requires the court to ‘hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole,’ and specifically provides that the court may refuse to accept the death penalty as fixed by the jury and may ‘sentence’ the defendant to death or life without parole. Code of Ala. 1975, § 13-11-4. That section provides that if the court imposes a ‘sentence of death’ it must set forth, in writing, the basis for the sentence.” Jacobs v. State, 361 So. 2d, at 644 (emphasis in original; footnote omitted).

See also Ritter v. State, 429 So. 2d 928, 935-936 (Ala. 1983); Beck v. State, 396 So. 2d, at 659.

In this case, moreover, it is clear that the sentencing judge did not interpret the statute as requiring him to consider the jury’s “sentence,” because he never described the “sentence” as a factor in his deliberations. After the jury returned its verdict, the trial judge informed petitioner:

“Let me say this: The jury has found you guilty of the crime of robbery with the aggravated circumstances of intentionally killing the victim . . . and set your punishment at death by electrocution but the law of this state provides first that there will be an additional hearing in this case at which time the Court will consider aggravating circumstances, extenuating and all other circumstances, concerning the commission of this particular offense” (emphasis added). Tr. 249.

In addition, in imposing the sentence, the judge stated:

“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted” (emphasis added). App. 18.

None of these statements indicates that the judge considered the jury’s verdict to be a factor that he added, or that he was required to add, to the scale in determining the appropriateness of the death penalty, or that he believed the jury’s verdict was entitled to a presumption of correctness. The judge, of course, knew the Alabama system and all that it signified, knew that the jury’s “sentence” was mandatory, and knew that it did not reflect consideration of any mitigating circumstance. The judge logically, therefore, would not have thought that he owed any deference to the jury’s “sentence” on the issue whether the death penalty was appropriate for petitioner.⁸

Ill

Petitioner contends, nevertheless, that a judge’s decision to impose the death penalty must be swayed by the fact that the jury returned a “sentence” of death. He points to this Court’s opinion in Beck v. Alabama, 447 U. S. 625, 645 (1980), which expressed some skepticism about the influence the jury’s “sentence” would have on a judge. Beck held unconstitutional the provision of the 1975 Act that precluded the jury from considering lesser included noncapital offenses. The Court reasoned that the provision violated due process, because where the jury’s only choices were to convict a defendant of the capital offense and “sentence” him to death, or to acquit him, but the evidence would have supported a lesser included offense verdict, the factfinding process was tainted with irrelevant considerations. On the one hand, the Court reasoned, the unavailability of the option of convicting on a lesser included offense may encourage the jury to convict the defendant of a capital crime because it believes that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit because it believes the defendant does not deserve the death penalty. The unavailability of the lesser included offense option, when it is warranted by the evidence, thus “intro-ducéis] a level of uncertainty and unreliability into the fact-finding process that cannot be tolerated in a capital case.” Id., at 642-643.

In so holding, this Court rejected Alabama’s argument that, even if the unavailability of a lesser included offense led a jury erroneously to convict a defendant, the fact that the judge was the true sentencer would ensure that the defendant was not improperly sentenced to death. It reasoned:

“[I]t is manifest that the jury’s verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State’s Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence. Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury’s factfinding function.” Id., at 645-646 (footnote omitted).

This Court’s concern in Beck was that the judge would be inclined to accept the jury’s factual finding that the defendant was guilty of a capital offense, not that the judge would be influenced by the jury’s “sentence” of death. To “correct” an erroneous guilty verdict, the sentencing judge would have to determine that death was an inappropriate punishment, not because mitigating circumstances outweighed aggravating circumstances, but because the defendant had not been proved guilty beyond a reasonable doubt. Obviously, a judge will think hard about the jury’s guilty verdict before basing a sentence on the belief that the defendant was not proved guilty of the capital offense. Indeed, the judge should think hard before rejecting the guilty verdict, because the determination of guilt is properly within the province of the jury, and the jury heard the same evidence regarding guilt as the judge.

It does not follow, however, that the judge will be swayed to impose a sentence of death merely because the jury returned a mandatory death “sentence,” when it had no opportunity to consider mitigating circumstances. The judge knows that determination of the appropriate sentence is not within the jury’s province, and that the jury does not consider evidence in mitigation in arriving at its “sentence.” The jury’s “sentence” means only that the jury found the defendant guilty of a capital crime — that is, that it found the fact of intentional killing in the course of a robbery — and that if the judge finds that the aggravating circumstances outweigh the mitigating circumstances, the judge is authorized to impose a sentence of death. The “sentence” thus conveys nothing more than the verdict of guilty, when it is read in conjunction with the provisions of the 1975 Act making the offense a capital crime, would convey. It defies logic to assume that a judge will be swayed to impose the death penalty by a “sentence” that has so little meaning. Despite its misdescribed label, it is not a sentence of death.

Petitioner also argues that the requirement that the jury return a “sentence” of death “blurs” the issue of guilt with the issue whether death is the appropriate punishment, and may cause the jury arbitrarily to nullify the mandatory death penalty by acquitting a defendant who is proved guilty, but who the jury, without any guidance, finds undeserving of the death penalty. Petitioner’s argument stems from Wood-son, where the plurality opinion noted that American juries “persistently” have refused to convict “a significant portion” of those charged with first-degree murder in order to avoid mandatory death-penalty statutes, and expressed concern that the unguided exercise of the power to nullify a mandatory sentence would lead to the same “wanton” and “arbitrary” imposition of the death penalty that troubled the Court in Furman. 428 U. S., at 302-303. The Alabama scheme, however, has not resulted in such arbitrariness. Juries deliberating under the 1975 statute did not act to nullify the mandatory “sentence” by refusing to convict in a significant number of cases; indeed, only 2 of the first 50 defendants tried for capital crimes during the time the 1975 Act was in effect were acquitted. See Beck v. Alabama, 447 U. S., at 641, n. 18. Thus, while the specter of a mandatory death sentence may have made juries more prone to acquit, thereby benefiting the two defendants acquitted, it did not render Alabama’s scheme unconstitutionally arbitrary.

> I — I

The wisdom and phraseology of Alabama’s curious 1975 statute surely are open to question, as Alabama’s abandonment of the statutory scheme in 1981 perhaps indicates.⁹ This Court has made clear, however, that “we are unwilling to say that there is any one right way for a State to set up its capital-sentencing scheme.” Spaziano v. Florida, 468 U. S. 447, 464 (1984). See also Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (opinion of Stewart, Powell, and Stevens, JJ.). Alabama’s requirement that the jury return a “sentence” of death along with its guilty verdict, while unusual, did not render unconstitutional the death sentence the trial judge imposed after independently considering petitioner’s background and character and the circumstances of his crime.

The judgment of the Supreme Court of Alabama is affirmed.

It is so ordered.

1 The originating statute was 1975 Ala. Acts, No. 213, effective March 7, 1976. Act No. 213 was enacted in response to this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), and revised the State’s death-penalty statutes. Chapter 11 of Title 13 of the Alabama Code, as it thereafter stood, was repealed in its entirety and replaced by new death-penalty provisions set forth in 1981 Ala. Acts, No. 81-178, effective July 1, 1981. The repeal did not moot the present case because petitioner’s offense was committed and his sentence was imposed in 1977 while the 1975 Act was in effect. See 1981 Ala. Acts, §§19 and 20, codified as Ala. Code, § 13A-5-57 (1982).

2 Our own research has disclosed no other death-penalty statute currently in effect that requires the jury to return a death “sentence,” but then has the judge make the actual sentencing decision. Indeed, as is noted herein, Alabama has changed its death-penalty scheme and no longer has the requirement.

3 The sentencing judge found, as an additional aggravating factor, that petitioner had been adjudged delinquent in juvenile proceedings after being charged with kidnaping and rape. The Alabama Court of Criminal Appeals ruled that the delinquency adjudication was not valid as an aggravating circumstance, but held that the judge’s consideration of it was harmless error. 456 So. 2d 117, 125-128 (1983), aff’d, 456 So. 2d 129 (Ala. 1984). That issue was not raised in the petition for certiorari here, and we have no reason to consider it.

4 Petitioner’s conviction and sentence were affirmed initially by the Alabama Court of Criminal Appeals, 372 So. 2d 26 (1978), and by the Supreme Court of Alabama, 372 So. 2d 32 (1979). This Court, however, 448 U. S. 903 (1980), vacated and remanded the case for reconsideration in the light of Beck v. Alabama, 447 U. S. 625 (1980), which held unconstitutional a clause in Alabama’s 1975 Act that precluded the jury from considering lesser included noncapital offenses. On remand, the Court of Criminal Appeals reversed the judgment of conviction on the basis of Beck. 405 So. 2d 699 (1981). After this Court ruled that due process requires a lesser included offense instruction only when warranted by the evidence, Hopper v. Evans, 456 U. S. 605 (1982), the Court of Criminal Appeals granted rehearing, rescinded its earlier reversal, and reaffirmed petitioner’s conviction and sentence. 456 So. 2d 117 (1983). The Supreme Court of Alabama affirmed that decision, 456 So. 2d 129 (1984), and it is that judgment which we now review.

5 The Court of Criminal Appeals, as has been noted in the text, must review the decision of a trial court that imposes the death penalty, § 12-22-150, and if that court affirms the sentence, certiorari review by the Supreme Court of Alabama is automatic. Ala. Rule App. Proc. 39(c). Both appellate courts “review . . . the aggravating and mitigating circumstances found in the case by the trial judge” and independently weigh those circumstances to determine whether the imposition of a death sentence is appropriate. Jacobs v. State, 361 So. 2d 640, 647 (Ala. 1978) (Torbert, C. J., concurring in part and dissenting in part), cert. denied, 439 U. S. 1122 (1979); see also Beck v. State, 396 So. 2d. 645, 664 (Ala. 1981). In reviewing petitioner’s sentence, neither appellate court gave any indication of including the jury’s “sentence” in the weighing. In describing its review of petitioner’s sentence, the Court of Criminal Appeals stated:

“We have reviewed the aggravating and mitigating circumstances set out in the record and the trial court’s findings relative to those circumstances. . . . After review of the hearing on aggravating and mitigating circumstances, we find no error on the part of the trial court in reaching the conclusion that the aggravating circumstances far outweigh the mitigating circumstances in this case. The sentence fits the crime.” 372 So. 2d, at 32.

Upon reaffirming petitioner’s conviction in light of Hopper v. Evans, 456 U. S. 605 (1982), the Court of Criminal Appeals again noted its obligation to weigh independently the aggravating and mitigating circumstances, and found that petitioner’s death sentence was appropriate. 456 So. 2d, at 128. The State Supreme Court also found that the “aggravating circumstances greatly outweighed the mitigating circumstances.” 456 So. 2d, at 140.

6 See § 13-11-6. The 1975 Act required the judge to weigh aggravating circumstances specified in §13-11-6 against mitigating circumstances. The Alabama courts interpreted the Act, however, to require the judge to find the presence of the § 13-ll-2(a) definitional aggravating circumstance (in other words, to agree with the jury’s finding that the defendant is guilty of the offense charged in the indictment) before weighing any § 13-11-6 aggravating circumstances against mitigating circumstances. Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981). Generally, the definitional aggravating circumstances of § 13-ll-2(a) have counterparts in § 13-11-6. Where there is no counterpart, the judge must find the definitional aggravating circumstance or no death sentence can be imposed, even though § 13-11-6 aggravating circumstances outweigh mitigating circumstances. 399 So. 2d, at 337.

7 In his statement of facts, petitioner asserts that the sentencing judge limited his consideration of mitigating circumstances to those specified by § 13-11-7, in violation of Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). That issue was not addressed by the Supreme Court of Alabama in the decision under review, and was not raised in the petition for certio-rari. We have no reason to consider the issue here. We note, however, that in its first review of petitioner’s sentence, the Court of Criminal Appeals held that petitioner “was' given the opportunity to present any mitigating circumstance” (emphasis supplied), and that the 1975 Act did not preclude consideration of any aspect of petitioner’s character or of the circumstances of the offense. 372 So. 2d, at 32. We already have noted that the sentencing judge asked petitioner to “tell the judge anything that you feel like might be helpful to you in the position that you find yourself in.” App. 12. Petitioner’s counsel three times asked petitioner while he was on the stand if there was “anything else you would like for the judge to know or to be able to tell him at this point?” Id., at 10-11. Finally, at the conclusion of petitioner’s testimony, the judge asked petitioner’s counsel if he had “anything else that you might be able to offer in the way of mitigating circumstances.” Id., at 14.

8 We express no view regarding the constitutionality of a death sentence imposed by a judge who did consider the jury’s verdict in this Alabama statutory structure as a factor that weighed in favor of the imposition of the death penalty.

9 Following this Court’s decisions in Beck v. Alabama, 447 U. S. 625 (1980), and Hopper v. Evans, 456 U. S. 605 (1982), the Supreme Court of Alabama held that in a capital case in which the jury is instructed regarding a lesser included noncapital offense

“the requirement in § 13-ll-2(a), that the jury ‘shall fix the punishment at death’ [is construed] to be permissive and to mean that the jury cannot fix punishment at death until it takes into account the circumstances of the offense together with the character and propensity of the offender, under sentencing procedures which will miminize the risk of an arbitrary and capricious imposition of the death penalty” (emphasis in original). Beck v. State, 396 So. 2d, at 660.

The Alabama Legislature then repealed the 1975 Act, and replaced it with a trifurcated proceeding in which the jury first determines guilt or innocence, and, if it returns a guilty verdict, hears evidence concerning aggravation and mitigation. On the basis of that evidence, the jury issues an advisory sentence. If the verdict is for death, that sentence is not binding on the trial judge, who then is required to hold another hearing regarding aggravating and mitigating circumstances before determining the actual sentence. Ala. Code §§ 13A-5-39 to 13A-5-59 (1982).