United States v. Peter Gaston Kaiser

545 F.2d 467, 1977 U.S. App. LEXIS 10529

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 14, 1977
• Docket: 74-4128
• Status: Published

Opinions

GOLDBERG, Circuit Judge.

Peter Gaston Kaiser appeals from his conviction of first degree murder within the special territorial jurisdiction of the United States, 18 U.S.C. § 1111 (1970), and the ensuing sentence of death by electrocution. His appeal causes us to address the survival of the executioner’s trade in the federal enclave after its demise in many states at Supreme Court order. Although that Court has set up some vital signs for the death penalty, none of them appear in § 1111. The capital punishment provision before us is absolutely barren of sentencing standards, an open invitation to capricious and arbitrary execution. We have no doubt that the Constitution has dealt this statute a lethal blow. Hence we reverse the judgment below insofar as it imposes a sentence of death. Finding appellant’s other asserted points of error without merit, however, we affirm the judgment of conviction and remand for substitution of a sentence of life imprisonment.

The facts here require only brief statement. On August 28, 1973, two hitchhikers directed their driver to an area on the Fort Benning, Georgia, military reservation where they fatally shot him and stole his personal effects and his ear. Little over a week later, appellant and his codefendant, Larry Fate Fortune, kidnapped James Hoover of Columbus, Georgia and forced him to drive them to Texas in Hoover’s car. Police in Colorado City, Texas, stopped that car, with Kaiser and Fortune in the front seat, for traffic violations. The roadside detention produced the murder victim’s driver’s license and two pistols that Kaiser and Fortune had purchased near the date of the shooting, pistols subsequently identified as possibly having fired the bullets taken from the victim’s body.

At Kaiser’s trial in the United States District Court for the Middle District of Georgia, numerous witnesses related admissions made to them by Kaiser. These admissions plus an abundance of circumstantial evidence linked Kaiser and codefendant Fortune to the shooting. After one day of trial, Fortune pleaded guilty to second degree murder; he subsequently testified on Kaiser’s behalf. A jury found Kaiser guilty of first degree murder, and the court imposed the sentence of death under 18 U.S.C. § mi.

We turn first to the constitutionality of that sentence. Consideration of Kaiser’s other claims of error follows.

I. Capital Punishment under 18 U.S.C. § 1111.

The court convicted Kaiser of first degree murder within the special territorial jurisdiction of the United States, codified at 18 U.S.C. § 1111. Subsection (b) of the statute prescribes the punishment as follows:

Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto “without capital punishment”, in which event he shall be sentenced to imprisonment for life .

This provision is cut from the same die as that condemned as cruel and unusual in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).¹ Prior to the case at hand, the unbroken assumption of prosecutors and courts has been that the death penalty could no longer be applied under § 1111 consistently with the eighth amendment. The Supreme Court’s most recent struggle with the executioner, for all its attendant confusion, bore out this assumption which was ignored by the court below. The Court’s five death penalty decisions confirmed the principle that a system of capital punishment that does not clearly define standards to guide the exercise of sentencing discretion is constitutionally intolerable. This statute fully violates that principle; the sentence of death by electrocution shall be set aside.

A. Furman

In the three cases consolidated under the name of Furman, supra, the court issued a terse per curiam announcement, accompanied by five individual, quite disparate concurrences, to the effect that capital punishment as imposed under statutes that provided complete discretion to the sentencing authority constituted cruel and unusual punishment.² Justices Brennan and Marshall concluded that the death penalty could never be constitutionally imposed. See Furman, supra, 92 S.Ct. at 2736 (Brennan, J., concurring); id. at 2765 (Marshall, J., concurring). Justices Douglas, Stewart, and White concurred on the more narrow ground that the arbitrariness, if not discrimination, that they perceived in the operation of the discretionary capital punishment systems before the Court violated eighth amendment strictures. See Furman, supra, 92 S.Ct. at 2727 (Douglas, J., concurring); id. at 2760 (Stewart, J., concurring); id. at 2763 (White, J., concurring).

B. Responses: § 1111 Considered

While the precise rationales for the various Furman opinions were most unclear, the practical impact was not. The decisions invalidated the capital punishment laws of thirty-nine states and the District of Columbia. See Furman, supra, 92 S.Ct. at 2815 (Blackmun, J., dissenting).³ Most important for purposes of this appeal, Justice Blackmun’s dissent in Furman acknowledged that “all those provisions of the federal statutory structure that permit the death penalty apparently are voided.” Furman, supra, 92 S.Ct. at 2815.⁴ Until the case before us arose, the unanimous postFurman understanding of federal courts, federal prosecutors, and Congress appears to have been that the death penalty could not constitutionally be imposed under § 1111.

Federal courts have been confronted tangentially with the death penalty provisions of § 1111 and other federal criminal statutes; all have concluded that the conferral of unfettered discretion on the sentencing authority under these provisions rendered them unconstitutional in light of Furman. In United States v. Watson, 496 F.2d 1125 (4th Cir. 1973), a § 1111 defendant complained that he had been entitled at trial to the appointment of two attorneys which 18 U.S.C. § 3005 provides for a defendant in a capital case. The Fourth Circuit accepted the government’s argument that Furman had invalidated the death provision of § 1111:

Since the penalty provision of § 1111 is indistinguishable from those challenged in Furman, it is clear that, had the death penalty been imposed on defendant, such a sentence would have been void.

496 F.2d at 1126.⁵ See also United States v. Woods, 484 F.2d 127, 138 (4th Cir. 1973) (only available punishment under § 1111 after Furman is life imprisonment); United States v. Freeman, 380 F.Supp. 1004 (D.N.D.1974) (death penalty provision of § 1111 unconstitutional; procedural safeguards attendant upon capital charges inapplicable).

Other federal statutes conferring discretion on judge and jury to choose between imprisonment and death have fared no better. See United States v. Quinones, 353 F.Supp. 1325 (D.P.R.1973) (rape: 18 U.S.C. § 2031); United States v. Bohle, 346 F.Supp. 577 (N.D.N.Y.1972) (former federal air piracy statute).

Federal prosecutors have also recognized readily the invalidity of the capital punishment provision of § 1111. A Congressional committee considering post-Furman federal death penalty legislation observed that federal attorneys had ceased asking for the death penalty generally. See 1974 U.S. Code Congressional and Administrative News 3980. We have found no reported case since Furman in which a United States Attorney sought the death penalty in a prosecution for first degree murder under this statute. On the contrary, in United States v. Watson, supra, 496 F.2d at 1126, n. 3, the government conceded that any death penalty imposed under § 1111 would be void.

Finally, the legislative history of the Antihijacking Act of 1974 reveals Congress’ understanding that Furman had invalidated the various discretionary death penalty provisions of the federal criminal code, including specifically that of § 1111. See 1974 U.S.Code Congressional and Administrative News 3980. The Congress attempted to meet the demands of Furman in the Antihijaeking Act, see 49 U.S.C. § 1473(c), but made no similar effort to oxygenate § 1111. In sum, all parts of the federal machinery that have brushed against § 1111 since Fur-man have concluded that the statute fell squarely within the area condemned by that decision. The contrary assertion of the provision’s continuing vitality borders on the audacious.

C. 1976 Death Penalty Cases: Furman Reaffirmed

While the post-Furman consensus regarding the invalidity of the death penalty provision of § lili was compelling, caution and deference required us to await the results of the Supreme Court’s further consideration of capital punishment, a subject that unforseeable delay caused to remain pending in the Court from the time of oral argument in the instant appeal to the close of the most recent term of the Supreme Court.⁶ At that time an again fragmented Court gave plenary consideration to the capital punishment statutes passed by five states in response to Furman. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The interplay of opinions and rationales leading the Court to uphold three of those statutes and void two is complex if not confounding; we do not here attempt a definitive exegesis. Such exhaustive treatment is unnecessary, for the 1976 opinions, in particular those of the pivotal plurality,⁷ do easily vindicate the post-Furman assumptions regarding the unconstitutionality of statutes such as § 1111 and mandate our decision to make that unconstitutionality explicit.' With the exception of a single Justice, the Court recognized the continuing validity and vitality of Furman. More fundamentally, the plurality opinions, read in conjunction with the concurrences of Justices Brennan and Marshall, yield principles of eighth amendment review that condemn § 1111, thus eliminating the need to rest our decision solely on the similarity between the provision before us and the statutes condemned in 1972. When that combined authority is considered, there can be no doubt that a majority of the Supreme Court, no matter how they attained their alliance, would strike § 1111 as being within Furman’s pall.

First, the 1976 cases do demonstrate at least an acquiescence in the Furman holding from almost all quarters of the Court. The plurality commenced its discussion of Furman in the most comprehensive of its five opinions, Gregg, supra, 96 S.Ct. at 2932, with this observation:

Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.

In conclusion of that discussion, the plurality announced that

we adhere to Furman's determination that where the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.

Id. at 2936, n.47. More equivocally, Justice White, speaking for Chief Justice Burger, Justice Rehnquist, and himself, characterized the 1972 decision:

In Furman, this Court’s judgment operated to preclude the practice of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder .

Id. at 2947.⁸

Although less conclusively, the opinions also demonstrate that Furman was neither founded on nor limited to cases containing empirical evidence of arbitrariness, discrimination, or infrequency in the imposition of the death penalty.⁹ Rather, the recent cases reveal majority support for the conclusion that Furman was grounded upon “the potential for arbitrariness inherent in granting sentencers uncontrolled discretion in deciding when to impose capital punishment.” Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv.L.Rev. 1690, 1692 (1974).

Evidence of this conclusion runs throughout the plurality opinions. In the above-quoted passage from Justice Stewart’s opinion in Gregg, supra, 96 S.Ct. at 2932, he specified that Furman condemned statutes creating a “substantial risk” of arbitrary and capricious capital punishment. Writing again for the plurality in Woodson, supra, 96 S.Ct. at 2990, Justice Stewart reiterated that the existence of unbridled discretion in a death penalty scheme was intolerable, without intimating that any showing of actual arbitrariness was required:

Central to the limited holding in Fur-man was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments.

Similarly, in Roberts, supra, Justice Stevens’s critical plurality opinion condemned the Louisiana mandatory death sentence statute without any consideration of the actual results of sentencing under the new provision, because it failed

to comply with Furman’s requirement that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences.

Id. at 3007.¹⁰ Finally, the plurality in Gregg recognized that the Furman conclusion that untrammeled discretion to impose the death penalty violated the eighth amendment was in “substantial tension” with the holding in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). The Court in McGautha had found that standardless jury discretion in capital sentencing did not violate the due process clause of the fourteenth amendment. Nonetheless, the plurality announced adherence to its reading of Furman. See Gregg, supra, 96 S.Ct. at 2936, n.47.

The plurality also attempted to settle the standards which are to guide judicial review of a penalty under the cruel and unusual punishments clause. The constitutional prohibition comprehends contemporary public standards of decency, see Gregg, supra, 96 S.Ct. at 2925, which may be reflected in the actions of legislatures and juries as well as in the society’s history and traditions. Id. at 2928-29. The eighth amendment, however, also incorporates a standard of human dignity not subject to majoritarian whim. See id. at 2925. That standard prohibits the unnecessary and wanton infliction of pain, as well as gross disproportion between punishment and crime. Id. While the plurality clearly rejected a “least restrictive alternative” analysis, its notion of unnecessary severity definitely embraced the principle that any punishment must demonstrably serve some valid penological justification in order to withstand constitutional scrutiny. See id. at 2929-30.

In light of this statement of general eighth amendment principles the reaffirmation of Furman may be read as a determination that standardless discretion in the imposition of the death penalty constitutes, in the terms of Justice White’s concurrence in the 1972 decision,

the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.

92 S.Ct. at 2764.¹¹ The route is murky from these standards to the Court’s ultimate conclusion that the prohibition against cruel and unusual punishment, far from requiring the elimination of discretion in capital punishment laws, is in fact satisfied only by the presence of some guided discretion. Moreover, the Court’s application of that conclusion to the statutes before it raises many questions. Nevertheless, the Constitution’s disapproval of standardless discretion in the imposition of the death penalty emerges untainted.

In 1971 the Supreme Court found ample reason to reject a due process challenge to unfettered jury discretion in the imposition of capital punishment:

To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.

McGautha, supra, 91 S.Ct. at 1466. In 1972 Furman condemned under the eighth amendment discretionary capital punishment schemes identical to the one before us. In 1976 the Court perceived that those statutes had been intolerable not because they granted discretion, but because they failed to guide it. Whether the results are labeled vacillation or refinement,, the tortures of the Court’s most solemn and deliberate struggle with the subject may suggest the limits of human wisdom when faced with the task of justifying systems for the extinction of fellow human beings. The true course of wisdom may lie in recognizing those mortal limits and abandoning the hangman’s trade; the Supreme Court has emphatically reminded us that wisdom is not a standard for application by the judiciary, but by the legislature.

Even this self-imposed restricted perspective has not obscured the Court’s earlier insight: the imposition of capital punishment even for narrow categories of murder, absent clearly defined channels of sentencing discretion focusing on the particularized circumstances of the crime and the offender, violates both the contemporary index of decency and, serving no demonstrable penological purpose, the transcendent standard of human dignity that inhere in the proscription of cruel and unusual punishment. The anachronism before us, conferring absolute sentencing discretion, easily falls before both of those still vital standards. In this instance at least, the Constitution prohibits society from adding another barbarous, degrading act to the horrible deed of which the defendant before us stands convicted. The death penalty provision of 18 U.S.C. § 1111 being void, we must vacate the judgment below to allow substitution of the alternative punishment under the statute, life imprisonment.

11. Trial Errors

Kaiser advances five separate claims of error and seeks reversal of the conviction on each. We find each ultimately wide of the mark.

A. Witness List

Appellant first complains of the testimony of a prosecution witness whose name had not been furnished to Kaiser prior to trial as required in capital cases by 18 U.S.C. § 3432.

When the doctor who performed the autopsy of the victim identified four bullets he had removed, the defense objected to admission of the bullets into evidence. Although the doctor had independently identified the bullets, the government offered to prove the chain of custody. The court left the decision to the prosecution without ruling, and the government set out to prove the chain as a precautionary measure. Included in the chain was Leslie Denk, an official who had custody of the exhibits for one day.

Denk’s name did not appear on the witness list which 18 U.S.C. § 3432 requires the prosecution to furnish in capital cases. In view of our decisions that the capital punishment provision of 18 U.S.C. § 1111 is unconstitutional and void, however, the strict procedural guarantees of § 3432 were not properly applicable to this trial. In United States v. Hoyt, 451 F.2d 570 (5th Cir. 1971), we confronted a similar § 3432 claim in connection with the federal kidnapping statute. The Supreme Court had held that the capital punishment provision of the statute unconstitutionally burdened the right to a jury trial. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). On that basis this court concluded in Hoyt that federal kidnapping was no longer a capital offense triggering § 3432. We have found no compelling distinction between the instant issue and that in Hoyt. As in that case, judicial excision of the death penalty provision renders § 1111 non-capital for all purposes. See also Carter v. United States, 388 F.Supp. 1334 (W.D.Pa.1975) (same result as Hoyt); United States v. Freeman, 380 F.Supp. 1004 (D.N.D.1974) (extra peremptory challenges under 18 U.S.C. § 3432 unavailable in § 1111 prosecution after Furman ). But see United States v. Watson, 496 F.2d 1125 (4th Cir. 1973) (18 U.S.C. § 1111 still defines a “capital crime” although Furman invalidates the sentencing provision; defendant’s right to two attorneys under 18 U.S.C. § 3005 survives). Because 18 U.S.C. § 3432 did not apply to Kaiser’s prosecution, the failure to list Denk as a witness provided no basis for objecting to his testimony.

B. Kidnap Testimony

Another prosecution witness was Mr. Hoover, the Columbus resident kidnapped by Kaiser and Fortune. Hoover testified of admissions relevant to the murder charge made by Kaiser during the trip to Texas following the kidnapping. In answer to preliminary questions regarding how he had come into contact with appellant, Hoover disclosed the kidnapping and some of the surrounding circumstances. Appellant complains that Hoover’s testimony about the fact and circumstances of the kidnapping constituted evidence of other crimes serving only to impugn Kaiser’s character.¹²

Appellant cannot and does not complain that Hoover’s recollections of Kaiser’s statement that he had killed three men and was on the run from the FBI were not properly admitted. Some predicate testimony of Hoover’s association with Kaiser was necessary to establish that the witness had actually been in a position to be addressed by Kaiser and to enable the jury to make any intelligent judgment regarding Hoover’s story. That predicate necessarily included at least the bare fact of the kidnapping. Cf. United States v. Bloom, 538 F.2d 704 (5th Cir. 1976).

Admitting evidence of other crimes for any reason, however, is proper only if genuine need for that evidence, in light of the contested issues and other evidence available to the prosecution, outweighs the danger that the jury will be inclined to convict because the other crimes show a defendant to be a “bad person.” See United States v. Miller, 500 F.2d 751 (5th Cir. 1974), reversed on other grounds, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); United States v. Goodwin, 492 F.2d 1141 (5th Cir. 1974). While we insist on careful application of that balance because of the inevitably great danger for prejudice, we cannot find fault with admitting the fact of the kidnapping here. That fact was the bare minimum necessary to establish Hoover’s opportunity to hear Kaiser’s admissions, which were themselves important, relevant evidence. No alternative setting for Hoover’s testimony existed.

The court did permit Hoover to go into greater detail regarding the circumstances of the kidnapping than was necessary to make his testimony to Kaiser’s admissions comprehensible to the jury. Nonetheless we are unable to find any harm flowing from the improper failure to limit the predicate testimony more narrowly. The details of the kidnapping reflected no greater force or depravity than would ordinarily be comprehended by the mere fact of kidnapping. Given the highly incriminating nature of the admissions themselves and the abundance of evidence implicating Kaiser in thé' murder, we can find no possible prejudice from the failure to exclude those details.

C. Photographs of Victim

Appellant also complains of the trial court’s decision allowing the jury to view photographs of the victim as left at the scene of the murder and at the morgue. These black and white photographs, used to demonstrate the identity of the victim and the manner of death, the latter bearing on the issue of intent, had probative value. See United States v. Delay, 500 F.2d 1360 (8th Cir. 1974); Maxwell v. United States, 368 F.2d 735 (9th Cir. 1966); cf. United States v. Hurt, 155 U.S.App.D.C. 217, 476 F.2d 1164 (1973). Consequently the determination of admissibility required a balancing of probative value against prejudicial impact, reviewable in this court for abuse of discretion. See United States v. Bailey, 537 F.2d 845 (5th Cir. 1976); United States v. Moton, 493 F.2d 30 (5th Cir. 1974). We have viewed the photographs and, although they are upsetting, we cannot say that they are in any respect more gruesome or shocking than is inherent in any visual record of a murder. Because they were important in establishing elements of the offense, we cannot conclude that the admission of such photographs constituted an abuse of discretion, at least where no less prejudicial alternative evidence was available.

D. Motion to Suppress

The Texas roadside detention of the car occupied by Kaiser and Fortune resulted in the discovery and seizure of the murder victim’s driver’s license and two pistols. The pistols had been purchased shortly before the murder and, according to expert testimony, possibly had been employed in the shooting. Appellant moved unsuccessfully to suppress this evidence as obtained in violation of his fourth amendment rights.

Two police officers testified to independent observation of traffic violations prior to stopping^the ear. The officer who apj»Oached the driver’s side testified that Fortune handed him, apparently inadvertently, the license that later proved to belong to the murder victim. The other policeman testified that, on approaching the passenger’s side, the two distinctive pistol handles were plainly visible in the seat next to Kaiser.

Appellant contradicted the officers’ story below. This suppression motion thus hinged on a credibility determination; we cannot sa; that the trial court’s resolution against appellant was erroneous. With the facts resolved in the officers’ favor, their actions did not transgress the fourth amendment. Evidence discovered in plain view, from a place where officers are entitled to stand and where their claim to stand is not created as a pretext solely to legitimate otherwise impermissible intrusions, is not the subject of a “search” within the meaning of that amendment; seizing such evidence does not trigger the warrant requirement.

E. Firearms Receipts; Chain of Custody

Finally, Kaiser claims that firearms purchase receipts seized from an apartment where he stayed during the period immediately following the shooting should not have been admitted because the government failed to establish an adequate chain of custody. The trial court found such a chain. Any error in that determination was harmless; adequate independent evidence connected Kaiser to the pistols and the time of purchase indicated on the receipts.

CONCLUSION

None of the alleged trial errors mandate reversal of the judgment of conviction for first degree murder. The anachronistic provision under which Kaiser was sentenced, however, cannot support the ultimate punishment. The suggestion that the federal government might salvage its death penalty statute while state statutes of the same genre are sent to the grave of unconstitutionality will not be countenanced. Accordingly, the judgment below is REVERSED IN PART to permit substitution of a sentence of life imprisonment; otherwise it is AFFIRMED.

1 . See Ga.Code Ann. § 26-1005 (Supp.1971):

The punishment for persons convicted of murder shall be death, but may be confinement in the penitentiary for life in the following cases: If the jury trying the case shall so recommend, or if the conviction is founded solely on circumstantial testimony, the presiding judge may sentence to confinement in the penitentiary for life. In the former case it is not discretionary with the judge; in the latter it is. . .

Whenever a jury, in a capital case of homicide, shall find a verdict of guilty, with a recommendation of mercy, instead of a recommendation of imprisonment for life, . such verdict shall be held to mean imprisonment for life.

2 . The eighth amendment’s cruel and unusual punishment clause is made applicable to the states through the fourteenth amendment. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). But see Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 2993, 49 L.Ed.2d 944 (1976) (Rehnquist, J., dissenting).

3 . States wishing to maintain capital punishment understood that Furman called for significant redrafting. Some responded by making the death penalty mandatory for narrow categories of murder, such as felony murder or murder of a law enforcement officer. Others made the penalty available for a larger class of crimes, but attempted to define aggravating and mitigating circumstances that would guide the sentencing authority’s decision whether to impose death in a particular case. Other approaches were also taken. See generally, Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv.L.Rev. 1690 (1974).

4 . Although Justice Blackmun did not specifically list § 1111 among the condemned provisions, he did list numerous others from which we find § 1111 indistinguishable.

5 . The court went on to rule that, although the death penalty was unavailable, § 1111 remained a “capital crime” for purposes of the special procedural protections of 18 U.S.C. § 3005.

6 . Fowler v. North Carolina, - U.S. -, 96 S.Ct. 3212, 49 L.Ed.2d 1212 (1976), placed the death penalty before the Court at the time of oral argument in the instant appeal. The illness of Mr. Justice Douglas caused that case to be set for reargument. See Fowler v. North Carolina, 422 U.S. 1039, 95 S.Ct. 2652, 45 L.Ed.2d 691 (1975). The case received summary disposition in connection with the Court’s decisions on capital punishment in June 1976.

7 . Justices Stewart, Powell, and Stevens joined in an opinion in each of the five cases announcing the decision of the Court. Given the continuing conclusions of Justices Marshall and Brennan that the death penalty is unconstitutional per se, this plurality supplied the critical votes to strike the statutes of North Carolina and Louisiana. See Woodson, supra, 96 S.Ct. at 2981; Roberts, supra, 96 S.Ct. at 3003. Because the greater scrutiny that Justices Marshall and Brennan find com; lied by the eighth amendment, both in general ~nd as applied to capital punishment, would lead them to invalidate any penal sanction which the plurality’s approach would condemn, the positions of the plurality may be read as those of a majority of the court.

8 . Given their view that the death penalty is unconstitutional per se, Justices Brennan and Marshall also accept the more limited holding of Furman. Justice Rehnquist, however, continues to be of the view that Furman violated both precedent and principle. See Woodson, supra, 96 S.Ct. at 2998 (Rehnquist, J., dissenting).

9 . One observer has argued that the scant documentation in some of the Furman concurrences militates for interpreting the Court’s decision as not resting on empirical demonstration. See Note, supra note 3, at 1694 — 96.

If it were necessary to look beyond a statute to see if the sentencer’s discretion received guidance, an inquiry we think unnecessary, one would look no further than the explicit instruction to the jury below that there were no standards to guide the choice between life and death.

10 . Justice White’s opinion for the four dissenters in Roberts, supra, 96 S.Ct. at 3012-13, recognized that

[i]t is undeniable that the unfettered discretion of the jury to save the defendant from death was a major contributing factor in the developments which led us to invalidate the death penalty in Furman v. Georgia.

His opinions throughout the five cases, however, evidence a belief that invalidation of capital punishment provisions would follow only upon an empirical demonstration of some significant probability of arbitrary, discriminatory, or rare application of the ultimate sanction. See, e. g., Gregg, supra, 96 S.Ct. at 2948.

11 . While the plurality stated its eighth amendment principles as general propositions for the judicial review of punishments, it did stress that its conclusion that the amendment requires guidance in the exercise of discretion to impose the death penalty rested on the unique nature of that sanction. See Gregg, supra, 96 S.Ct. at 2932. The plurality’s conclusion that the eighth amendment requires particularized consideration by the sentencer of the individual offender and his offense rested clearly on the unique nature of capital punishment. See Woodson, supra, 96 S.Ct. at 2991-92.

12 . Counsel for both Kaiser and Fortune offered pretrial motions and trial objections, on a variety of grounds, regarding Hoover’s testimony as a whole and in certain specifics. The record is confused as to whether Kaiser’s counsel, rather than Fortune’s, properly preserved this specific objection. In any case, we conclude that the claim fails on its merits.