Barclay v. Florida

463 U.S. 939, 103 S. Ct. 3418, 77 L. Ed. 2d 1134, 1983 U.S. LEXIS 111, 51 U.S.L.W. 5206

• Court: Supreme Court of the United States
• Decided: July 6, 1983
• Docket: 81-6908
• Status: Published

Opinions

Justice Rehnquist

announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice O’Connor joined.

The central question in this case is whether Florida may constitutionally impose the death penalty on petitioner Elwood Barclay when one of the “aggravating circumstances” relied upon by the trial judge to support the sentence was not among those established by the Florida death penalty statute.

The facts, as found by the sentencing judge and quoted by the Florida Supreme Court, are as follows:

“[T]he four defendants were part of a group that termed itself the ‘BLACK LIBERATION ARMY’ (BLA), and whose apparent sole purpose was to indiscriminately kill white persons and to start a revolution and a racial war.

“The testimony showed that on the evening of June 17, 1974, Dougan, Barclay, Crittendon, Evans and William Hearn set out in a car armed with a twenty two caliber pistol and a knife with the intent to kill . . . any white person that they came upon under such advantageous circumstances that they could murder him, her or them.

“That as they drove around the City of Jacksonville they made several stops and observed white persons as possible victims, but decided that the circumstances were not advantageous and that they might be observed or thwarted .... At one stop, Dougan wrote out a note — which was to be placed on the body of the victim ultimately chosen for death.

“Eventually the five men headed for Jacksonville Beach where they picked up a hitch hiker, eighteen year old, Stephen Anthony Orlando. Against his will and over his protest they drove him to an isolated trash dump, ordered him out of the car, threw him down and Barclay repeatedly stabbed him with a knife. Dougan then put his foot on Orlando’s head and shot him twice— once in the cheek and once in the ear — killing him instantly.

“The evidence showed that none of the defendants knew or had ever seen Orlando before they murdered him. The note, which Dougan had previously written, was stuck to Orlando’s body by the knife of the murderers. The note read:

“‘Warning to the oppressive state. No longer will your atrocities and brutalizing of black people be unpunished. The black man is no longer asleep. The revolution has begun and the oppressed will be victorious. The revolution will end when we are free. The Black Revolutionary Army. All power to the people.’ . . .

“Subsequent to the murder the defendants Barclay and Dougan . . . made a number of tape recordings concerning the murder. These recordings were mailed to the [victim’s mother] and to radio and television stations. All of the tapes contained much the same in content and intent. [The court then reproduced typical excerpts from transcripts of the tapes, which included the following:]

“ ‘The reason Stephen was only shot twice in the head was because we had a jive pistol. It only shot twice and then it jammed; you can tell it must have been made in America because it wasn’t worth a shit. He was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes. . . .’

“‘He died in style, though, begging, begging and pleading for mercy, just as black people did when you took them and hung them to the trees, burned their houses down, threw bombs in the same church that practices the same religion that you forced on these people, my people.

“‘We are everywhere; you cannot hide from us. You have told your people to get off the streets and to stay home. That will not help, for one night they will come home and we will be there waiting. It has been said, look for us and you cannot see us; listen for us and you cannot hear us; feel for us and you cannot touch us. These are the characteristics of an urban guerilla.’” Barclay v. State, 343 So. 2d 1266, 1267-1269 (1977).

Barclay and Dougan were convicted by a jury of first-degree murder.¹ As required by the Florida death penalty statute, Fla. Stat. §921.141(1) (1977), a separate sentencing hearing was held before the same jury. The jury rendered advisory sentences under §921.141(2), recommending that Dougan be sentenced to death and, by a 7 to 5 vote, that Barclay be sentenced to life imprisonment. The trial judge, after receiving a presentence report, decided to sentence both men to death. He made written findings of fact concerning aggravating and mitigating circumstances as required by §921.141(3). App. 1-53. The trial judge found that several of the aggravating circumstances set out in the statute were present. He found that Barclay had knowingly created a great risk of death to many persons, § 921.141(5)(c), had committed the murder while engaged in a kidnaping, § 921.141(5)(d), had endeavored to disrupt governmental functions and law enforcement, §921.141(5)(g), and had been especially heinous, atrocious, or cruel. § 921.141(5)(h). See 343 So. 2d, at 1271.

The trial judge did not find any mitigating circumstances. He noted in particular that Barclay had an extensive criminal record, and therefore did not qualify for the mitigating circumstance of having no significant history of prior criminal activity. §921.141(6)(a). He found that Barclay’s record constituted an aggravating, rather than a mitigating, circumstance. 343 So. 2d, at 1270, and n. 2. The trial judge also noted that the aggravating circumstance of §921.141(5)(a) (“The capital felony was committed by a convict under sentence of imprisonment”) was not present, but restated Barclay’s criminal record and again found it to be an aggravating circumstance. App. 33-34. He made a similar finding as to the aggravating circumstance of § 921.141(5)(b) (“The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person”). Barclay had been convicted of breaking and entering with intent to commit the felony of grand larceny, but the trial judge did not know whether it involved the use or threat of violence. He pointed out that crimes such as this often involve the use or threat of violence, and stated that “there are more aggravating than mitigating circumstances.” Id., at 34-35.

The trial judge concluded that “[T]HERE ARE SUFFICIENT AND GREAT AGGRAVATING CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE SENTENCE OF DEATH AS TO BOTH DEFENDANTS.” Id., at 48. He therefore rejected part of the jury’s recommendation, and sentenced Barclay as well as Dougan to death.

On the automatic appeal provided by Fla. Stat. §921.141 (4) (1977), the Florida Supreme Court affirmed. It approved the findings of the trial judge and his decision to reject the jury’s recommendation that Barclay be sentenced to life imprisonment. It concluded that “[t]his is a case . . . where the jury did not act reasonably in the imposition of sentence, and the trial judge properly rejected one of their recommendations.” 343 So. 2d, at 1271 (footnotes omitted).

This Court denied a petition for a writ of certiorari. 439 U. S. 892 (1978). However, the Florida Supreme Court later vacated its judgment, sua sponte, in light of our decision in Gardner v. Florida, 430 U. S. 349 (1977), and remanded to the trial court to give Barclay a full opportunity to rebut the information in the presentence report that was prepared for the trial judge. The trial court held a resentencing hearing, and reaffirmed the death sentence on the basis of findings that are essentially identical to its original findings. App. 82-141. On appeal, the Florida Supreme Court again affirmed, holding that Barclay had not been denied any rights under Gardner. 411 So. 2d 1310 (1981). Rehearing was denied by an equally divided court. Ibid.

I

Barclay has raised numerous objections to the trial judge’s findings. The Florida courts declined to reconsider these arguments in the resentencing proceedings. The resentenc-ing hearing was limited to ensuring that Barclay received all the rights to which he was entitled under Gardner. The Florida Supreme Court stated that it had “previously analyzed,” 411 So. 2d, at 1311, Barclay’s arguments, which were directed “against the findings previously reviewed here and affirmed,” and declined to “abrogate the ‘law of the case’” on these questions. Id., at 1310. Since the Florida Supreme Court held that it had considered Barclay’s claims in his first appeal, and simply refused to reconsider its previous decision in the second appeal, those claims are properly before us. Reece v. Georgia, 350 U. S. 85, 86-87 (1955).

A

Barclay argues that the trial judge improperly found that his criminal record was an “aggravating circumstance.” The State concedes that this is correct: Florida law plainly provides that a defendant’s prior criminal record is not a proper “aggravating circumstance.” Mikenas v. State, 367 So. 2d 606, 610 (Fla. 1978).

B

Barclay also argues that the trial judge improperly found the “under sentence of imprisonment” and “previously been convicted of a [violent] felony” aggravating circumstances. The Florida Supreme Court, however, construed the trial judge’s opinion as finding that these aggravating circumstances “essentially had no relevance here.” 343 So. 2d, at (footnote omitted). We see no reason to disturb that conclusion. The trial judge plainly stated that Barclay “was not under sentence of imprisonment.” App. 120. The trial judge also stated in the same paragraph that Barclay’s criminal record “is an aggravating circumstance,” id., at 121, but this is simply a repetition of the error noted above.

Barclay also challenges the findings on several other aggravating circumstances. He claims that the trial court improperly found that he caused a great risk of death to many people,² that the murder was committed during a kidnaping, that the murder was committed to disrupt the lawful exercise of a governmental function or the enforcement of the laws,³ and that the murder was especially heinous, atrocious, or cruel.⁴ All of these findings were made by the trial court and approved by the Florida Supreme Court under Florida law. Our review of these findings is limited to the question whether they are so unprincipled or arbitrary as to somehow violate the United States Constitution. We think they were not. It was not irrational or arbitrary to apply these aggravating circumstances to the facts of this case.⁵

c

Barclay also contends that his sentence must be vacated because the trial judge, in explaining his sentencing decision, discussed the racial motive for the murder and compared it with his own experiences in the Army in World War II, when he saw Nazi concentration camps and their victims.⁶ Barclay claims that the trial judge improperly added a non-statutory aggravating circumstance of racial hatred and should not have considered his own experiences.

We reject this argument. The United States Constitution does not prohibit a trial judge from taking into account the elements of racial hatred in this murder. The judge in this case found Barclay’s desire to start a race war relevant to several statutory aggravating factors.⁷ The judge’s discussion is neither irrational nor arbitrary. In particular, the comparison between this case and the Nazi concentration camps does not offend the United States Constitution. Such a comparison is not an inappropriate way of weighing the “especially heinous, atrocious, or cruel” statutory aggravating circumstance in an attempt to determine whether it warrants imposition of the death penalty.

Any sentencing decision calls for the exercise of judgment. It is neither possible nor desirable for a person to whom the State entrusts an important judgment to decide in a vacuum, as if he had no experiences. The thrust of our decisions on capital punishment has been that “ ‘discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”’ Zant v. Stephens, 462 U. S. 862, 874 (1983), quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). This very day we said in another capital case:

“In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar ‘central issue’ from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent’s jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” California v. Ramos, post, at 1008.

We have never suggested that the United States Constitution requires that the sentencing process should be transformed into a rigid and mechanical parsing of statutory aggravating factors. But to attempt to separate the sen-tencer’s decision from his experiences would inevitably do precisely that. It is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing. We expect that sentencers will exercise their discretion in their own way and to the best of their ability. As long as that discretion is guided in a constitutionally adequate way, see Proffitt v. Florida, 428 U. S. 242 (1976), and as long as the decision is not so wholly arbitrary as to offend the Constitution, the Eighth Amendment cannot and should not demand more.

II

In this case the state courts have considered an aggravating factor that is not a proper aggravating circumstance under state law.⁸ Barclay argues that a system that permits this sort of consideration does not meet the standards established by this Court under the Eighth and Fourteenth Amendments for imposition of the death penalty.⁹ As in Zant, supra, at 884, the question whether Barclay’s sentence must be vacated depends on the function of the finding of aggravating circumstances under Florida law and on the reason why this aggravating circumstance is invalid.¹⁰

A

The Florida statute at issue in this case was upheld in Proffitt v. Florida, supra. The opinion of Justices Stewart, Powell, and Stevens described the mechanics of the statute as follows:

“[I]f a defendant is found guilty of a capital offense, a separate evidentiary hearing is held before the trial judge and jury to determine his sentence. Evidence may be presented on any matter the judge deems relevant to sentencing and must include matters relating to certain legislatively specified aggravating and mitigating circumstances. Both the prosecution and the defense may present argument....

“At the conclusion of the hearing the jury is directed to consider ‘[wjhether sufficient mitigating circumstances exist. . . which outweigh the aggravating circumstances found to exist; and . . . [biased on these considerations, whether the defendant should be sentenced to life [imprisonment] or death.’ §§ 921.141(2)(b) and (c) (Supp. 1976-1977). The jury’s verdict is determined by majority vote. It is only advisory; the actual sentence is determined by the trial judge. The Florida Supreme Court has stated, however, that ‘[i]n order to sustain a sentence of death following a jury recommendation of

life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.’ Tedder v. State, 322 So. 2d 908, 910 (1975). . . .

“The trial judge is also directed to weigh the statutory aggravating and mitigating circumstances when he determines the sentence to be imposed on a defendant. The statute requires that if the trial court imposes a sentence of death, ‘it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) [t]hat sufficient [statutory] aggravating circumstances exist . . . and (b) [t]hat there are insufficient [statutory][11] mitigating circumstances ... to outweigh the aggravating circumstances.’ §921.141(3) (Supp. 1976-1977).

“The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed. §921.141(4) (Supp. 1976-1977). The law differs from that of Georgia in that it does not require the court to conduct any specific form of review. Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to ‘[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case. ... If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.’ State v. Dixon, 283 So. 2d 1, 10 (1973).” 428 U. S., at 248-251 (footnotes omitted) (emphasis supplied).

Thus the Florida statute, like the Georgia statute at issue in Zant v. Stephens, 462 U. S. 862 (1983), requires the sentencer to find at least one valid statutory aggravating circumstance before the death penalty may even be considered,¹² and permits the trial court to admit any evidence that may be relevant to the proper sentence. Unlike the Georgia statute, however, Florida law requires the sentencer to balance statutory aggravating circumstances against all mitigating circumstances and does not permit nonstatutory aggravating circumstances to enter into this weighing process. E. g., Mikenas v. State, 367 So. 2d 606 (Fla. 1978). The statute does not establish any special standard for this weighing process.

Although the Florida statute did not change significantly between Proffitt and the decision below,¹³ the Florida Supreme Court has developed a body of case law in this area. One question that has arisen is whether defendants must be resentenced when trial courts erroneously consider improper aggravating factors. If the trial court found that some mitigating circumstances exist, the case will generally be remanded for resentencing. Elledge v. State, 346 So. 2d 998, 1002-1003 (Fla. 1977). See, e. g., Moody v. State, 418 So. 2d 989, 995 (Fla. 1982); Riley v. State, 366 So. 2d 19, 22 (Fla. 1978). If the trial court properly found that there are no mitigating circumstances, the Florida Supreme Court applies a harmless-error analysis. Elledge, supra, at 1002-1003. See, e. g., White v. State, 403 So. 2d 331 (Fla. 1981); Sireci v. State, 399 So. 2d 964, 971 (Fla. 1981). In such a case, “a reversal of the death sentence would not necessarily be required,” Ferguson v. State, 417 So. 2d 639, 646 (Fla. 1982), because the error might be harmless.

The Florida Supreme Court has not always found that consideration of improper aggravating factors is harmless, even when no mitigating circumstances exist. In Lewis v. State, 398 So. 2d 432 (Fla. 1981), for example, the defendant shot the victim once in the head through his bedroom window, killing him instantly. The jury recommended life imprisonment, but the trial judge sentenced Lewis to death, finding four aggravating circumstances and no mitigating circumstances. The Florida Supreme Court found that the evidence did not support three of the aggravating circumstances. It did find that the “under sentence of imprisonment” aggravating circumstance was properly applied because Lewis was on parole from a prison sentence when he committed the crime. On these facts, and with only this one relatively weak aggravating circumstance left standing, the Florida Supreme Court did not find harmless error, but rather remanded for resentencing.

The Florida Supreme Court has placed another check on the harmless-error analysis permitted by Elledge. When the jury has recommended life imprisonment, the trial judge may not impose a death sentence unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (1975). In Williams v. State, 386 So. 2d 538, 543 (1980), and Dobbert v. State, 375 So. 2d 1069, 1071 (1979), the Florida Supreme Court reversed the trial judges’ findings of several aggravating circumstances. In each case at least one valid aggravating circumstance remained, and there were no mitigating circumstances. In each case, however, the Florida Supreme Court concluded that in the absence of the improperly found aggravating circumstances the Tedder test could not be met. Therefore it reduced the sentences to life imprisonment.

The trial judge’s consideration of Barclay’s criminal record as an aggravating circumstance was improper as a matter of state law: that record did not fall within the definition of any statutory aggravating circumstance, and Florida law prohibits consideration of nonstatutory aggravating circumstances. In this case, as in Zant v. Stephens, 462 U. S., at 887-888, nothing in the United States Constitution prohibited the trial court from considering Barclay’s criminal record. The trial judge did not consider any constitutionally protected behavior to be an aggravating circumstance. See id., at 884. And, again as in Zant, nothing in the Eighth Amendment or in Florida law prohibits the admission of the evidence of Barclay’s criminal record. On the contrary, this evidence was properly introduced to prove that the mitigating circumstance of absence of a criminal record did not exist. This statutory aggravating circumstance “plausibly described aspects of the defendant’s background that were properly before the [trial judge] and whose accuracy was unchallenged.” Id., at 887.

C

The crux of the issue, then, is whether the trial judge’s consideration of this improper aggravating circumstance so infects the balancing process created by the Florida statute that it is constitutionally impermissible for the Florida Supreme Court to let the sentence stand. It is clear that the Court in Proffitt did not accept this notion. Indeed, the joint opinion announcing the judgment listed the four aggravating circumstances that had been found against Proffitt, and one of them — “the petitioner has the propensity to commit murder” — was not and is not a statutory aggravating circumstance in Florida. 428 U. S., at 246 (opinion of Stewart, Powell, and Stevens, JJ.).

That opinion did state:

“The petitioner notes further that Florida’s sentencing system fails to challenge the discretion of the jury or judge because it allows for consideration of nonstatutory aggravating factors. In the only case to approve such a practice, Sawyer v. State, 313 So. 2d 680 (1975), the Florida court recast the trial court’s six nonstatutory aggravating factors into four aggravating circumstances — two of them statutory. As noted earlier, it is unclear that the Florida court would ever approve a death sentence based entirely on nonstatutory aggravating circumstances. See n. 8, supra,” Id., at 256-257, n. 14.

While this statement may properly be read to question the propriety of a sentence based entirely on nonstatutory aggravating factors, it is clear that the opinion saw no constitutional defect in a sentence based on both statutory and nonstatutory aggravating circumstances. See also California v. Ramos, post, at 1007-1009, quoting Zant, supra, at 878.

Barclay’s brief is interlarded with rhetorical references to “[ljawless findings of statutory aggravating circumstances,” Brief for Petitioner 33, “protective pronouncements which . . . seem to be turned on and off from case to case without notice or explanation,” id., at 93, and others in a similar vein. These varied assertions seem to suggest that the Florida Supreme Court failed to properly apply its own cases in upholding petitioner’s death sentence. The obvious answer to this question, as indicated in the previous discussion, is that mere errors of state law are not the concern of this Court, Gryger v. Burke, 334 U. S. 728, 731 (1948), unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.

In any event, we do not accept Barclay’s premise. Cases such as Lewis, supra, Williams, supra, and Dobbert, supra, indicate that the Florida Supreme Court does not apply its harmless-error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance. See n. 9, supra. “What is important... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant, supra, at 879 (emphasis in original).

In this case, as in Zant, supra, at 890, our decision is buttressed by the Florida Supreme Court’s practice of reviewing each death sentence to compare it with other Florida capital cases and to determine whether “the punishment is too great.” State v. Dixon, 283 So. 2d 1, 10 (1973). See, e. g., Blair v. State, 406 So. 2d 1103, 1109 (Fla. 1981). It is further buttressed by the rule prohibiting the trial judge from overriding a jury recommendation of life imprisonment unless “virtually no reasonable person could differ.” Tedder v. State, supra, at 910.

The judgment of the Supreme Court of Florida is

Affirmed.

1 Evans and Crittendon, who did not actually kill Orlando, were convicted of second-degree murder and sentenced to 199 years in prison. Hearn pleaded guilty to second-degree murder and testified for the prosecution.

2 The Florida Supreme Court stated:

“The trial judge noted five aborted attempts to select a victim from the streets of Jacksonville before Stephen Criando was chosen, plus the taped threat made to white Jacksonville citizens that a race war had begun and none would be safe.” 343 So. 2d, at 1271, n. 4.

“The basis for this finding was the judge’s observation that the notion of a race war essentially threatened the foundations of American society.”

3 Id., at 1271, n. 5.

4 The Florida Supreme Court noted that the tape recordings petitioner and Dougan made “explained how Stephen Orlando had begged for his life while being beaten and stabbed before Dougan ‘executed’ him with two pistol shots in the head.” Id., at 1271, n. 6.

5 The differences between this case and Godfrey v. Georgia, 446 U. S. 420 (1980), are readily apparent. Godfrey killed his wife and his mother-in-law with a single shotgun blast each. Each died instantly. There was no torture or aggravated battery. The state court nonetheless found that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ga. Code §27-2534.1(b)(7) (1978). It found no other aggravating circumstances. We concluded that, on the facts of the case, such a finding could only have resulted from a “standardless and unchannelled” decision based on “the uncontrolled discretion of a basically uninstructed jury.” 446 U. S.; at 429.

6 The concluding sections of the trial judge’s opinion read as follows:

“CONCLUSION OF THE COURT

“THERE ARE SUFFICIENT AND GREAT AGGRAVATING CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE SENTENCE OF DEATH AS TO THE DEFENDANT ELWOOD CLARK BARCLAY.

“AUTHORITY FOR SENTENCE

“That under Florida Law the Judge sentences a defendant, convicted of Murder in the First Degree, either to death or life imprisonment. This is an awesome burden to be placed upon the Judge — but in the landmark Florida case of State v. Dixon, 283 So. 2d 1, the Florida Supreme Court said that when such discretion can ‘be shown to be reasonable and controlled, rather than capricious and discriminatory,’ then it meets the test of Furman v. Georgia, 408 U. S. 238.

“COMMENTS OF JUDGE

“My twenty-eight years of legal experience have been almost exclusively in the field of Criminal Law. I have been a defense attorney in criminal cases, an Advisor to the Public Defender’s Office, a prosecutor for eight and one-half years and a Criminal Court and Circuit Court Judge — Felony Division — for almost ten years. During these twenty-eight years I have defended, prosecuted and held trial in almost every type of serious crime.

“Because of this extensive experience, I believe I have come to know and understand when, or when not, a crime is heinous, atrocious and cruel and deserving of the maximum possible sentence.

“My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. I, like so many American Combat Infantry Soldiers, walked the battlefields of Europe and saw the thousands of dead American and German soldiers and I witnessed the concentration camps where innocent civilians and children were murdered in a war of racial and religious extermination.

“To attempt to initate such a race war in this country is too horrible to contemplate for both our black and white citizens. Such an attempt must be dealt with by just and swift legal process and when justified by a Jury verdict of guilty — then to terminate and remove permanently from society those who would choose to initiate this diabolical course.

“HAD THE DEFENDANT BEEN EXPOSED TO THE CARNAGE OF THE BATTLEFIELDS AND THE HORRORS OF THE CONCENTRATION CAMPS INSTEAD OF MOVIES, TELEVISION PROGRAMS AND REVOLUTIONARY TRACTS GLORIFYING VIOLENCE AND RACIAL STRIFE — THEN PERHAPS HIS THOUGHTS AND ACTIONS WOULD HAVE TAKEN A LESS VIOLENT COURSE.

“Having set forth my personal experiences above, it is understandable that I am not easily shocked or moved by tragedy — but this present murder and call for racial war is especially shocking and meets every definition of heinous, atrocious and cruel. The perpetrator thereby forfeits further right to life — for certainly his life is no more sacred than that of the innocent eighteen year old victim, Stephen Anthony Orlando.” App. 135-139..

7 The trial judge discussed this point in the course of finding the “great risk of death to many persons,” “disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws,” and “especially heinous, atrocious, or cruel” statutory aggravating circumstances.

8 Barclay does not, and could not reasonably, contend that the United States Constitution forbids Florida to make the defendant’s criminal record an aggravating circumstance. Thus, this case is distinguishable from Zant v. Stephens, 462 U. S. 862 (1983), where one of the three aggravating circumstances found in Georgia state court was found to be invalid under the Federal Constitution. Of course, a ‘“mere error of state law’ is not a denial of due process.” Engle v. Isaac, 456 U. S. 107, 121, n. 21 (1982), quoting Gryger v. Burke, 334 U. S. 728, 731 (1948). Thus we need not apply the type of federal harmless-error analysis that was necessary in Zant, supra, at 884-889.

9 Barclay does not contend that the Florida Supreme Court erred in applying the “law of the case” doctrine to this case. His claim seems to be, rather, that the errors in this case were so egregious and the flaws in the Florida statute are so fundamental that his sentence cannot constitutionally be permitted to stand. The Florida Supreme Court did not address Barclay’s arguments in precisely the terms he now uses. But, so far as we can tell from the record before us, Barclay did not make his arguments in the same terms on his first appeal. We know from the Florida Supreme Court’s opinion in the second appeal that it regarded these questions as having been decided in its first opinion. See supra, at 946. It appears, contrary to Justice Marshall’s assertion, post, at 989, that any fault, if fault there be, for failure to elaborate more fully on the relationship of this case to other Florida cases may well lie at the door of petitioner, and not the Supreme Court of Florida.

10 We have, in some similar circumstances, certified a question to the State Supreme Court in order to ascertain as precisely as possible the state-law basis for a sentence. See Zant v. Stephens, 456 U. S. 411, 416-417 (1982). But that procedure would be inappropriate here. Unlike Zant, which was a habeas case that originated in the federal court system, this case has already been twice reviewed by the Supreme Court of Florida. On petitioner’s second appeal the Supreme Court of Florida declined to address the questions he presents to this Court. Under these circumstances, certification to the Supreme Court of Florida would be little more than a pointed suggestion that it retreat from its “law of the case” position. While we may reverse or modify a state-court judgment which we find erroneously disposes of a federal question, we will not certify a question in these circumstances.

11 In fact, even before this Court decided Lockett v. Ohio, 438 U. S. 586 (1978) (evidence at sentencing phase cannot be limited to statutory mitigating circumstances), the Florida Supreme Court had construed this statute to permit consideration of any mitigating circumstances. See Songer v. State, 365 So. 2d 696, 700 (Fla. 1978) (citing cases). The opinion of Stewart, Powell, and Stevens, JJ. explicitly recognized that § 921.141(5) does not include language limiting mitigating circumstances to those listed in the statute, but § 921.141(6) provides that “aggravating factors shall be limited to” the statutory aggravating circumstances. 428 U. S., at 250, n. 8. It is not clear from the opinion itself why the opinion inserted the word “statutory” in brackets when quoting § 921.141(b)(3).

12 The language of the statute, which provides that the sentencer must determine whether “sufficient aggravating circumstances exist,” §921.141(3)(a), indicates that any single statutory aggravating circumstance may not be adequate to meet this standard if, in the circumstances of a particular case, it is not sufficiently weighty to justify the death penalty. We have not found a Florida case in which a defendant claimed that a single aggravating circumstance was not “sufficient” within the meaning of §921.141(3)(a).

13 The statute was amended in 1979, but the parties agree that the amended statute was not applied to Barclay.