Spaziano v. Florida

468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340, 1984 U.S. LEXIS 141, 52 U.S.L.W. 5030

Opinions

Justice Blackmun

delivered the opinion of the Court.

This case presents questions regarding the administration of Florida’s capital sentencing statute. In particular, petitioner challenges the trial court’s failure to instruct the jury on lesser included offenses of capital murder. He also challenges the court’s imposition of a sentence of death when the jury had recommended life. We conclude that on the facts of this case, it was not error for the trial judge to refuse to give the lesser included offense instruction and that there is no constitutional requirement that the jury’s recommendation of life be final. We also reject petitioner’s argument that, as applied in this case, the Florida standards for overriding a jury’s sentencing recommendation are so broad and vague as to violate the constitutional requirement of reliability in capital sentencing.

I

Petitioner Joseph Robert Spaziano was indicted and tried for first-degree murder. The indictment was brought two years and one month after the alleged offense. Under the Florida statute of limitations in effect at the time of the alleged offense, August 1973, the limitations period for noncapital offenses was two years. Fla. Stat. §932.465(2) (1973).¹ There was no statute of limitations for capital offenses, such as first-degree murder. §932.465(1).

The primary evidence against petitioner was given by a witness who testified that petitioner had taken him to a garbage dump in Seminole County, Fla., where petitioner had pointed out the remains of two women he claimed to have tortured and murdered. Petitioner challenged the sufficiency of the witness’ recall and perception because of a substantial drug habit. The witness testified that he had not taken drugs on the day of the visit to the garbage dump, and he had been able to direct the police to the site. See Spaziano v. State, 393 So. 2d 1119, 1120 (Fla. 1981).

At the close of the evidence, the trial court informed petitioner that it would instruct the jury on the lesser included, noncapital offenses of attempted first-degree murder, second-degree murder, third-degree murder, and manslaughter, if petitioner would waive the statute of limitations as to those offenses. Tr. 751-755. Petitioner refused to waive the statute. The court accordingly instructed the jury solely on capital murder.

The jury deliberated somewhat more than six hours. It reported itself deadlocked, and the trial court gave an additional instruction, encouraging the jurors to resolve their differences and come to a common conclusion.² Shortly thereafter, the jury returned a verdict of guilty of first-degree murder.

The trial court then convened a sentencing hearing before the same jury. Arguments were heard from both sides and evidence offered on aggravating and mitigating circumstances. A majority of the jury recommended life imprisonment.³ In Florida, the jury’s sentencing recommendation in a capital case is only advisory. The trial court is to conduct its own weighing of the aggravating and mitigating circumstances and, “[notwithstanding the recommendation of a majority of the jury,” is to enter a sentence of life imprisonment or death; in the latter case, specified written findings are required. Fla. Stat. §921.141(3) (1983).⁴ The trial court concluded that, “notwithstanding the recommendation of the jury, . . . sufficient aggravating circumstances existed to justify and authorize a death sentence^] . . . the mitigating circumstances were insufficient to outweigh such aggravating circumstances and ... a sentence of death should be imposed in this case.” App. 14. The two aggravating circumstances found by the court were that the homicide was especially heinous and atrocious and that the defendant had been convicted previously of felonies involving the use or threat of violence to the person. The trial court found no mitigating circumstance “except, perhaps, the age [28] of the defendant.” Id., at 14-15.

On appeal, the Supreme Court of Florida affirmed the conviction but reversed the death sentence. Spaziano v. State, 393 So. 2d 1119 (1981). In deciding whether to impose the death sentence, the trial judge had considered a confidential portion of the presentence investigation report that contained information about petitioner’s previous felony convictions as well as other charges for which petitioner had not been convicted. Neither party had received a copy of that confidential portion. Relying on Gardner v. Florida, 430 U. S. 349 (1977), the court concluded that it was error for the trial judge to rely on the confidential information in the presentence investigation report without first disclosing the information to petitioner and giving him an opportunity to present evidence in response.

In a memorandum of supplemental authority, petitioner also urged that Beck v. Alabama, 447 U. S. 625 (1980), required reversal of his conviction because of the trial court’s failure to instruct the jury on the lesser included offenses absent a waiver of the statute of limitations on those offenses. The Supreme Court found Beck inapposite. Beck concerned an express statutory prohibition on instructions for lesser included offenses. The court found nothing in Beck requiring that the jury determine the guilt or innocence of lesser included offenses for which the defendant could not be convicted and adjudicated guilty. This Court denied certiorari. 454 U. S. 1037 (1981).

On remand, the trial court ordered a new presentence investigation report and scheduled a hearing to allow petitioner to present evidence in response to the report. At the hearing, petitioner offered no evidence. The State presented evidence that petitioner had been convicted previously of forcible carnal knowledge and aggravated battery. Although the State had attempted to introduce evidence of the prior conviction in petitioner’s initial sentencing hearing before the jury, the trial judge had excluded the evidence on the ground that the conviction was then on appeal. By the time of the Gardner rehearing, the conviction was final and the trial judge agreed that it was a proper consideration. Accordingly, he relied on that conviction in finding the aggravating circumstance that the defendant had been convicted previously of a felony involving the use of violence to the person. The judge also reaffirmed his conclusion that the crime was especially heinous, atrocious, and cruel. He sentenced petitioner to death. App. 25.

The Supreme Court of Florida affirmed. 433 So. 2d 508 (1983). It rejected petitioner’s argument that the trial court erred in allowing the State to introduce evidence of a previous conviction not considered in the original sentencing phase. The court noted that the information was in the original presentence investigation report. The only reason it was not considered was that the trial court mistakenly thought that under Florida law it could not be considered, since the conviction was then on appeal.

The Supreme Court also found no constitutional infirmity in the procedure whereby the judge is allowed to override the jury’s recommendation of life. The court found no double jeopardy problem with the procedure, because the jury’s function is only advisory. The court added its understanding that allowing the jury’s recommendation to be binding would violate the requirements of Furman v. Georgia, 408 U. S. 238 (1972).

Finally, the court found that in this case the evidence suggesting that the death sentence be imposed over the jury’s recommendation of life “meets the clear and convincing test to allow override of the jury’s recommendation in accordance with . . . Tedder v. State, 322 So. 2d 908 (Fla. 1975).” 433 So. 2d, at 511. One judge dissented, finding “no compelling reason” to override the jury’s recommendation of life. Id., at 512.

We granted certiorari, 464 U. S. 1038 (1984), and we now affirm.

II

We turn first to the trial court’s refusal to give an instruction on lesser included offenses. In Beck v. Alabama, supra, the Court recognized the risk of an unwarranted conviction that is created when the jury is deprived of the “third option” of convicting the defendant of a lesser included offense. Id., at 637. See also Keeble v. United States, 412 U. S. 205, 212-213 (1973). We concluded that “[s]uch a risk cannot be tolerated in a case in which the defendant’s life is at stake” and that “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [a State] is constitutionally prohibited from withdrawing that option from the jury in a capital case.” 447 U. S., at 637-638. The issue here is whether the defendant is entitled to the benefit of both the lesser included offense instruction and an expired period of limitations on those offenses.⁵

Petitioner urges that he should not be required to waive a substantive right — to a statute of limitations defense — in order to receive a constitutionally fair trial. Beck made clear that in a capital trial, a lesser included offense instruction is a necessary element of a constitutionally fair trial. Thus, petitioner claims, he is entitled to the benefit of the Beck rule regardless of whether the statute of limitations prevents him from actually being punished on a lesser included offense.

We, of course, have no quarrel with petitioner’s general premise that a criminal defendant may not be required to waive a substantive right as a condition for receiving an otherwise constitutionally fair trial. We do not agree that the premise fairly applies to petitioner’s situation. Petitioner would have us divorce the Beck rule from the reasoning on which it was based. The element the Court in Beck found essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced rationality and reliability the existence of the instruction introduced into the jury’s deliberations. Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process. Beck does not require that result.

The Court in Beck recognized that the jury’s role in the criminal process is essentially unreviewable and not always rational. The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. In Beck, the Court found that risk unacceptable and inconsistent with the reliability this Court has demanded in capital proceedings. Id., at 643. The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence. Id., at 638-643. Requiring that the jury be instructed on lesser included offenses for which the defendant may not be convicted, however, would simply introduce another type of distortion into the factfinding process.

We reaffirm our commitment to the demands of reliability in decisions involving death and to the defendant’s right to the benefit of a lesser included offense instruction that may reduce the risk of unwarranted capital convictions. But we are unwilling to close our eyes to the social cost of petitioner’s proposed rule. Beck does not require that the jury be tricked into believing that it has a choice of crimes for which to find the defendant guilty, if in reality there is no choice. Such a rule not only would undermine the public’s confidence in the criminal justice system, but it also would do a serious disservice to the goal of rationality on which the Beck rule is based.

If the jury is not to be tricked into thinking that there is a range of offenses for which the defendant may be held accountable, then the question is whether Beck requires that a lesser included offense instruction be given, with the defendant being forced to waive the expired statute of limitations on those offenses, or whether the defendant should be given a choice between having the benefit of the lesser included offense instruction or asserting the statute of limitations on the lesser included offenses. We think the better option is that the defendant be given the choice.

As the Court in Beck recognized, the rule regarding a lesser included offense instruction originally developed as an aid to the prosecution. If the State failed to produce sufficient evidence to prove the crime charged, it might still persuade the jury that the defendant was guilty of something. Id., at 633. See also 3 C. Wright, Federal Practice and Procedure §515, p. 20, n. 2 (2d ed. 1982). Although the Beck rule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant, there may well be cases in which the defendant will be confident enough that the State has not proved capital murder that he will want to take his chances with the jury. If so, we see little reason to require him not only to waive his statute of limitations defense, but also to give the State what he perceives as an advantage — an opportunity to convict him of a lesser offense if it fails to persuade the jury that he is guilty of capital murder. In this case, petitioner was given a choice whether to waive the statute of limitations on the lesser offenses included in capital murder. He knowingly chose not to do so.⁶ Under those circumstances, it was not error for the trial judge to refuse to instruct the jury on the lesser included offenses.

Ill

Petitioner’s second challenge concerns the trial judge’s imposition of a sentence of death after the jury had recommended life imprisonment. Petitioner urges that allowing a judge to override a jury’s recommendation of life violates the Eighth Amendment’s proscription against “cruel and unusual punishments.” Because the jury’s verdict of life should be final, petitioner argues, the practice also violates the Fifth Amendment’s Double Jeopardy Clause made applicable to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U. S. 784, 793-796 (1969). Finally, drawing on this Court’s recognition of the value of the jury’s role, particularly in a capital proceeding, petitioner urges that the practice violates the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.

Petitioner points out that we need not decide whether jury sentencing in all capital cases is required; this case presents only the question whether, given a jury verdict of life, the judge may override that verdict and impose death. As counsel acknowledged at oral argument, however, his fundamental premise is that the capital sentencing decision is one that, in all cases, should be made by a jury. Tr. of Oral Arg. 16-17. We therefore address that fundamental premise. Before doing so, however, it is useful to clarify what is not at issue here.

Petitioner does not urge that capital sentencing is so much like a trial on guilt or innocence that it is controlled by the Court’s decision in Duncan v. Louisiana, 391 U. S. 145 (1968). In Duncan, the Court found that the right to jury trial guaranteed by the Sixth Amendment is so “ ‘basic in our system of jurisprudence,’” id., at 149, quoting In re Oliver, 333 U. S. 257, 273 (1948), that it is also protected against state action by the Fourteenth Amendment.

This Court, of course, has recognized that a capital proceeding in many respects resembles a trial on the issue of guilt or innocence. See Bullington v. Missouri, 451 U. S. 430, 444 (1981). Because the “‘embarrassment, expense and ordeal’. . . faced by a defendant at the penalty phase of a. . . capital murder trial. . . are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial,” the Court has concluded that the Double Jeopardy Clause bars the State from making repeated efforts to persuade a sentencer to impose the death penalty. Id., at 445, quoting Green v. United States, 355 U. S. 184, 187 (1957); Arizona v. Rumsey, 467 U. S. 203 (1984). The fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause, however, does not mean that it is like a trial in respects significant to the Sixth Amendment’s guarantee of a jury trial. The Court’s concern in Bullington was with the risk that the State, with all its resources, would wear a defendant down, thereby leading to an erroneously imposed death penalty. 451 U. S., at 445. There is no similar danger involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer’s decision for life is final. Arizona v. Rumsey, supra. More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding — a determination of the appropriate punishment to be imposed on an individual. See Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (plurality opinion), citing Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937), and Williams v. New York, 337 U. S. 241, 247-249 (1949). The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.

Nor does petitioner urge that this Court’s recognition of the “qualitative difference” of the death penalty requires the benefit of a jury. In Furman v. Georgia, 408 U. S., at 238, the Court struck down the then-existing capital sentencing statutes of Georgia and Texas, in large part because of its conclusion that, under those statutes, the penalty was applied arbitrarily and discriminatorily. See also Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Since then, the Court has emphasized its pursuit of the “twin objectives” of “measured, consistent application and fairness to the accused.” Eddings v. Oklahoma, 455 U. S. 104, 110-111 (1982).⁷ If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Zant v. Stephens, 462 U. S. 862, 873-880 (1983); Furman v. Georgia, 408 U. S., at 294 (Brennan, J., concurring). It must also allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime. Lockett v. Ohio, supra.

Nothing in those twin objectives suggests that the sentence must or should be imposed by a jury. While it is to be hoped that current procedures have greatly reduced the risk that jury sentencing will result in arbitrary or discriminatory application of the death penalty, see Gregg v. Georgia, 428 U. S., at 190-195 (joint opinion), there certainly is nothingin the safeguards necessitated by the Court’s recognition of the qualitative difference of the death penalty that requires that the sentence be imposed by a jury.

Petitioner’s primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to make reliable capital sentencing decisions and that a jury’s decision for life should be inviolate. The reason for that recognition, petitioner urges, is that the nature of the decision whether a defendant should live or die sets capital sentencing apart and requires that a jury have the ultimate word. Noncapital sentences are imposed for various reasons, including rehabilitation, incapacitation, and deterrence. In contrast, the primary justification for the death penalty is retribution. As has been recognized, “the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Id., at 184. The imposition of the death penalty, in other words, is an expression of community outrage. Since the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community’s response must be death. If the answer is no, that decision should be final.

Petitioner’s argument obviously has some appeal. But it has two fundamental flaws. First, the distinctions between capital and noncapital sentences are not so clear as petitioner suggests. Petitioner acknowledges, for example, that deterrence may be a justification for capital as well as for non-capital sentences. He suggests only that deterrence is not a proper consideration for particular sentencers who are deciding whether the penalty should be imposed in a given case. The same is true, however, in noncapital cases. Whatever the sentence, its deterrent function is primarily a consideration for the legislature. Gregg v. Georgia, 428 U. S., at 186 (joint opinion). Similar points can be made about the other purposes of capital and noncapital punishment. Although incapacitation has never been embraced as a sufficient justification for the death penalty, it is a legitimate consideration in a capital sentencing proceeding. Id., at 183, n. 28; Jurek v. Texas, 428 U. S. 262 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). While retribution clearly plays a more prominent role in a capital case, retribution is an element of all punishments society imposes, and there is no suggestion as to any of these that the sentence may not be imposed by a judge.

Second, even accepting petitioner’s premise that the retributive purpose behind the death penalty is the element that sets the penalty apart,'it does not follow that the sentence must be imposed by a jury. Imposing the sentence in individual cases is not the sole or even the primary vehicle through which the community’s voice can be expressed. This Court’s decisions indicate that the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. See, e. g., Gregg v. Georgia, supra; Woodson v. North Carolina, 428 U. S., at 302-303; Zant v. Stephens, 462 U. S., at 879-880. The sentencer is responsible for weighing the specific aggravating and mitigating circumstances the legislature has determined are necessary touchstones in determining whether death is the appropriate penalty. Thus, even if it is a jury that imposes the sentence, the “community’s voice” is not given free rein. The community’s voice is heard at least as clearly in the legislature when the death penalty is authorized and the particular circumstances in which death is appropriate are defined. See Gregg v. Georgia, 428 U. S., at 183-184 (joint opinion); Furman v. Georgia, 408 U. S., at 394-395 (Burger, C. J., dissenting); id., at 452-454 (Powell, J., dissenting).

We do not denigrate the significance of the jury’s role as a link between the community and the penal system and as a bulwark between the accused and the State. See Gregg v. Georgia, 428 U. S., at 181 (joint opinion); Williams v. Florida, 399 U. S. 78, 100 (1970); Duncan v. Louisiana, 391 U. S., at 156; Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968). The point is simply that the purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge.⁸

We also acknowledge the presence of the majority view that capital sentencing, unlike other sentencing, should be performed by a jury. As petitioner points out, 30 out of 37 jurisdictions with a capital sentencing statute give the life- or-death decision to the jury, with only 3 of the remaining 7 allowing a judge to override a jury’s recommendation of life.⁹ The fact that a majority of jurisdictions have adopted a different practice, however, does not establish that contemporary standards of decency are offended by the jury override. The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. “Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment” is violated by a challenged practice. See Enmund v. Florida, 458 U. S. 782, 797 (1982); Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion). In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.

As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. See Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (joint opinion). The Court twice has concluded that Florida has struck a reasonable balance between sensitivity to the individual and his circumstances and ensuring that the penalty is not imposed arbitrarily or discriminatorily. Barclay v. Florida, 463 (1983); Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). We are not persuaded that placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision.

IV

Our determination that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed also disposes of petitioner’s double jeopardy challenge to the jury-override procedure. If a judge may be vested with sole responsibility for imposing the penalty, then there is nothing constitutionally wrong with the judge’s exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury.

V

Petitioner’s final challenge is to the application of the standard the Florida Supreme Court has announced for allowing a trial court to override a jury’s recommendation of life. See Tedder v. State, 322 So. 2d 908, 910 (1975). This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U. S. 282, 294-295 (1977). See also Proffitt, 428 U. S., at 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury’s role. See Richardson v. State, 437 So. 2d 1091, 1095 (Fla. 1983); Miller v. State, 332 So. 2d 65 (Fla. 1976). Our responsibility, however, is not to second-guess the deference accorded the jury’s recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory.

We see nothing that suggests that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case. Regardless of the jury’s recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances. If the judge imposes a sentence of death, he must set forth in writing the findings on which the sentence is based. Fla. Stat. §921.141(3) (1983). The Florida Supreme Court must review every capital sentence to ensure that the penalty has not been imposed arbitrarily or capriciously. §921.141(4). As Justice Stevens noted in Barclay, there is no evidence that the Florida Supreme Court has failed in its responsibility to perform meaningful appellate review of each death sentence, either in cases in which both the jury and the trial court have concluded that death is the appropriate penalty or in cases when the jury has recommended life and the trial court has overridden the jury’s recommendation and sentenced the defendant to death. See Barclay v. Florida, 463 U. S., at 971-972, and n. 23 (opinion concurring in judgment).

In this case, the trial judge based his decision on the presence of two statutory aggravating circumstances. The first, that the defendant had previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person, §921.141(5), was based on evidence not available to the advisory jury but, under Florida law, was properly considered by the trial judge. See White v. State, 403 So. 2d 331, 339-340 (1981). Petitioner’s prior conviction was for rape and aggravated battery. The trial judge also found that the murder in this case was heinous, atrocious, and cruel. The witness who accompanied petitioner to the dump site where the victim’s body was found testified that the body was covered with blood and that there were cuts on the breasts, stomach, and chest. The witness also testified that petitioner had recounted his torture of the victim while she was still living. The trial judge found no mitigating circumstances.

The Florida Supreme Court reviewed petitioner’s sentence and concluded that the death penalty was properly imposed under state law. It is not our function to decide whether we agree with the majority of the advisory jury or with the trial judge and the Florida Supreme Court. See Barclay v. Florida, 463 U. S., at 968 (Stevens, J., concurring in judgment). Whether or not “reasonable people” could differ over the result here, we see nothing irrational or arbitrary about the imposition of the death penalty in this case.

The judgment of the Supreme Court of Florida is affirmed.

It is so ordered.

1 Under the current Florida statute, there is no limitation period on capital and life felonies. There are, however, a 4-year limitation period on first-degree felonies, and a 3-year limit on prosecutions for all other felonies. Fla. Stat. §775.15 (1983). Under Florida law, the statute of limitations in effect at the time of the alleged offense governs. Florida ex rel. Manucy v. Wadsworth, 293 So. 2d 345, 347 (Fla. 1974).

2 The court instructed the jury as follows:

“Ladies and gentlemen, it is your duty to agree upon a verdict if you can do so without violating conscientiously held convictions that are based on the evidence or lack of evidence. No juror, from mere pride or opinion hastily formed or expressed, should refuse to agree. Yet, no juror, simply for the purpose of terminating a case, should acquiesce in a conclusion that is contrary to his own conscientiously held view of the evidence. You should listen to each other’s views, talk over your differences of opinion in a spirit of fairness and candor and, if possible, resolve your differences and come to a common conclusion, so that a verdict may be reached and that this case may be disposed of.” Tr. 817-818.

This instruction is commonly referred to as an Allen or “hammer” charge. See Allen v. United States, 164 U. S. 492 (1896).

3 By agreement of the parties, the jury was not polled. Sentencing Tr. 28-29 (Jan. 26, 1976).

4 The Florida capital sentencing statute in effect at the time of petitioner’s trial, January 1976, is not identical to that currently in effect. In 1976, the statute directed the sentencer to determine whether statutory aggravating circumstances were outweighed by statutory mitigating circumstances. See 1972 Fla. Laws, ch. 72-724. The current statute directs the sentencer to determine whether statutory aggravating circumstances are outweighed by any mitigating circumstances. §§ 921.141(2)(b), (3)(b) (1983), as amended by 1979 Fla. Laws, ch. 79-353. There is no suggestion in this case that either the jury or the trial judge was precluded from considering any nonstatutory mitigating evidence. Cf. Barclay v. Florida, 463 U. S. 939, 947, n. 2 (1983) (Stevens, J., concurring in judgment).

5 We note that although the Court has not specifically addressed the question presented here, it has assumed that if a defendant is constitutionally entitled to a lesser included offense instruction, the trial court has authority to convict him of the lesser included offense. See Keeble v. United States, 412 U. S. 205 (1973); id., at 215-217 (Stewart, J., dissenting on the ground that the Court’s decision improperly conferred jurisdiction in the federal district court over crimes not enumerated in the Major Crimes Act, 18 U. S. C. §§ 1153, 3242).

6 There is no doubt about petitioner’s understanding of the implications of his refusal to waive the statute of limitations. The following colloquy occurred in open court:

“THE COURT: Do you understand that while the statute of limitations has run on the Court submitting to the jury lesser included verdicts representing the charges of second-degree murder and third-degree murder, manslaughter, that you who has the benefit of the statute of limitations can waive that benefit and, of course — and then have the Court submit the ease to the jury on the first-degree, second-degree, third-degree and manslaughter.

“If you don’t waive the statute of limitations, then the Court would submit to the jury only on the one charge, the main charge, which is murder in the first degree, and the sentencing alternatives are as [defense counsel] stated them. Do you understand that?

“MR. SPAZIANO: Yes, your Honor.

“THE COURT: Are you sure?

“MR. SPAZIANO: I understand what I’m waiving. I was brought here on first-degree murder, and I figure if I’m guilty of this, I should be killed.” Tr. 753-754.

7 Because the death sentence is unique in its severity and in its irrevocability, Gregg v. Georgia, 428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia, 408 U. S. 238, 286-291 (1972) (Brennan, J., concurring), the Court has carefully scrutinized the States’ capital sentencing schemes to minimize the risk that the penalty will be imposed in error or in an arbitrary and capricious manner. There must be a valid penological reason for choosing from among the many criminal defendants the few who are sentenced to death. Zant v. Stephens, 462 U. S. 862, 876-877 (1983); Enmund v. Florida, 458 U. S. 782, 788-789 (1982); Godfrey v. Georgia, 446 U. S. 420, 428-429 (1980); Gardner v. Florida, 430 U. S. 349, 360-361 (1977) (plurality opinion); Proffitt v. Florida, 428 U. S. 242, 254-260 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, 428 U. S., at 196-207; Furman v. Georgia, supra. At the same time, the Court has insisted that the sentencing decision be based on the facts and circumstances of the individual and his crime. Zant v. Stephens, 462 U. S., at 879; Eddings v. Oklahoma, 455 U. S., at 110-112; Lockett v. Ohio, 438 U. S. 586, 601-605 (1978) (plurality opinion); Gregg v. Georgia, 428 U. S., at 197; Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976) (plurality opinion).

8 Petitioner’s efforts to distinguish the considerations relevant to imposition of a capital or a noncapital sentence bear more on the jury’s ability to function as the sentencer in a capital case than on the constitutionality of the judge’s doing so. We have no particular quarrel with the proposition that juries, perhaps, are more capable of making the life-or-death decision in a capital ease than of choosing among the various sentencing options available in a noncapital case. See ABA Standards for Criminal Justice 18-1.1, Commentary, pp. 18-21-18-22 (2d ed. 1980) (reserving capital sentencing from general disapproval of jury involvement in sentencing). Sentencing by the trial judge certainly is not required by Furman v. Georgia, supra. See Gregg v. Georgia, 428 U. S., at 188-196 (joint opinion). What we do not accept is that, because juries may sentence, they constitutionally must do so.

9 Twenty-nine jurisdictions allow a death sentence only if the jury recommends death, unless the defendant has requested trial or sentencing by the court. See Ark. Stat. Ann. § 41-1301 (1977); Cal. Penal Code Ann. § 190.3 (West Supp. 1984); Colo. Rev. Stat. § 16-11-103 (1978 and Supp. 1983); Conn. Gen. Stat. § 53a-46a (1983); Del. Code Ann., Tit. 11, § 11-4209 (1979 and Supp. 1982); Ga. Code Ann. §§ 17-10-30 to 17-10-32 (1982); Ill. Rev. Stat., ch. 38, ¶ 9—1 (Supp. 1984); Ky. Rev. Stat. § 532.025(1)(b) (Supp. 1982); La. Code Crim. Proe. Ann., Art. 905.8 (West Supp. 1984); Md. Ann. Code, Art. 27, § 413 (Supp. 1983); Mass. Gen. Laws Ann., ch. 279, §§ 68, 70 (West Supp. 1984); Miss. Code Ann. § 99-19-101 (Supp. 1983); Mo. Rev. Stat. § 565.006 (Supp. 1982); N. H. Rev. Stat. Ann. § 630.5 (Supp. 1983); N. J. Stat. Ann. §2C:11-3(c) (West 1982); N. M. Stat. Ann. § 31-20A-3 (1981); N. C. Gen. Stat. § 15A-2000 (1983); Ohio Rev. Code Ann. §2929.03 (1982); Okla. Stat., Tit. 21, §701.11 (1981); 42 Pa. Cons. Stat. § 9711(f) (1982); S. C. Code § 16-3-20 (Supp. 1983); S. D. Comp. Laws Ann. § 23A-27A-4 (1979); Tenn. Code Ann. § 39-2-203 (1982); Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981 and Supp. 1984); Utah Code Ann. § 76-3-207 (Supp. 1983); Va. Code § 19.2-264.4 (1983); Wash. Rev. Code (1983); Wyo. Stat. § 6-2-102 (1983); 49 U. S. C. App. § 1473(c). In Nevada, the jury is given responsibility for imposing the sentence in a capital case, but if the jury cannot agree, a panel of three judges may impose the sentence. Nev. Rev. Stat. §§ 175.554, 175.556 (1981). In Arizona, Idaho, Montana, and Nebraska, the court alone imposes the sentence. Ariz. Rev. Stat. Ann. § 13-703 (Supp. 1983-1984); Idaho Code §19-2515 (1979); Mont. Code Ann. §46-18-301 (1983); Neb. Rev. Stat. §29-2520 (1979). Besides Florida, the only States that allow a judge to override a jury’s recommendation of life are Alabama and Indiana. Ala. Code § 13A-5-46 (1982); Ind. Code § 35-50-2-9 (Supp. 1984).