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RICHMOND v. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL - 506 U.S. 40
OCTOBER TERM, 1992
RICHMOND v. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 91-7094. Argued October 13, 1992-Decided December 1,1992
Following a sentencing hearing on petitioner Richmond's first degree murder conviction, the Arizona trial judge found three statutory aggravating factors, including, under Ariz. Rev. Stat. Ann. § 13-703(F)(6), that the offense was committed in an "especially heinous, cruel or depraved manner" ((F)(6) factor). Concluding also that there were no mitigating circumstances sufficiently substantial to warrant leniency, the judge sentenced Richmond to death. The State Supreme Court affirmed, with each of the five justices joining one of three opinions. Among other things, the principal opinion for two of the justices found that the (F)(6) factor-which had been narrowed in State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, subsequent to Richmond's sentencing-was applicable. The principal opinion also conducted an independent review of the sentence and concluded that Richmond's mitigation evidence did not outweigh the aggravating factors. In a special concurrence, two of the other justices disagreed that the offense came within the (F)(6) factor as narrowed by Gretzler, but agreed that a death sentence was appropriate even absent that factor. The fifth justice filed a dissenting opinion urging reversal. Mter this Court denied certiorari, the Federal District Court declined to grant Richmond habeas corpus relief, and the Court of Appeals affirmed.
Held: Richmond's death sentence violates the Eighth Amendment. The (F)(6) factor was unconstitutionally vague at the time the sentencing judge gave it weight. Walton v. Arizona, 497 U. S. 639, 654. The State Supreme Court did not cure this error, because the two specially concurring justices did not actually reweigh the aggravating and mitigating circumstances in affirming the sentence. See, e. g., Clemons v. Mississippi, 494 U. S. 738. Those justices did not purport to perform a new sentencing calculus, or even mention the evidence in mitigation. Nor can such a reweighing be presumed, since language in the concurrence plainly indicates that Richmond's aggravated criminal background provided a conclusive justification for the death penalty, thereby evincing the sort of automatic affirmance rule proscribed in a "weighing" State such as Arizona. Id., at 751. Because a majority of the State Supreme Court did not perform a curative reweighing in voting to af-
firm Richmond's death sentence, the question whether the principal opinion properly relied on the (F)(6) factor as narrowed in Gretzler need not be decided by this Court. Pp. 46-52.
948 F.2d 1473, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 52. SCALIA, J., filed a dissenting opinion, post, p. 53.
Timothy K. Ford argued the cause for petitioner. With him on the briefs were Judith H. Ramseyer and Carla Ryan.
Paul J. McMurdie argued the cause for respondents.
With him on the brief were Grant Woods, Attorney General of Arizona, and Jack Roberts, Assistant Attorney General.
JUSTICE O'CONNOR delivered the opinion of the Court. The question in this case is whether the Supreme Court of Arizona has cured petitioner's death sentence of vagueness error.
On August 25, 1973, Bernard Crummett had the misfortune to meet Rebecca Corella in a Tucson, Arizona, bar. Crummett left the bar with Corella and, in the parking lot, met petitioner, who had been waiting for Corella with his girlfriend, Faith Erwin. Corella agreed to perform an act of prostitution with Crummett, and petitioner drove the group to Corella's hotel. There, Corella communicated to petitioner that Crummett was "loaded," and petitioner in turn whispered to Erwin that he intended to rob Crummett.
After Corella and Crummett concluded their encounter at the hotel, the group again went for a drive, this time to a deserted area outside Tucson, where, Crummett believed, Corella would perform another act of prostitution. Petitioner stopped the car and got out. He first struck Crummett to the ground and next threw several large rocks at Crummett's head. Crummett's watch and wallet were
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