Sochor v. Florida, 504 U.S. 527, 27 (1992)

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Cite as: 504 U. S. 527 (1992)

Opinion of Scalia, J.

nized that when the jury is given an instruction that is un-constitutionally vague, the jury's deliberative process is also tainted,16 and a remand is appropriate so that the jury can reach a sentence that is not influenced by the unconstitutional factor unless the error is harmless beyond a reasonable doubt.

The harmless-error inquiry to be conducted by the Florida Supreme Court on remand should, therefore, encompass the erroneous jury instruction on the heinousness factor and the error in submitting an instruction on the cold, calculated, and premeditated aggravating circumstance to the jury when the evidence did not support such an instruction, as well as the error committed by the trial judge in relying on that factor.

For the reasons given above, I concur in Parts I, III-B, and IV, and respectfully disagree with Parts II-A, II-B, and III-A.

Justice Scalia, concurring in part and dissenting in part. I join the Court's opinion insofar as it rejects petitioner's challenge to the heinous, atrocious, and cruel aggravating factor. I dissent, however, from its holding that the death sentence in this case is unconstitutional because the Florida Supreme Court failed to find "harmless error" after having invalidated the trial judge's "coldness" finding.

Even without that finding, three unquestionably valid aggravating factors remained, so that the death sentence com-court began with the premise that the jury's recommendation must be given significant weight by the trial judge. Once that premise is established, a focus on how the error may have affected the jury's recommendation makes sense: if the jury's recommendation is tainted, then the trial court's sentencing decision, which took into account that recommendation, is also tainted." Mann v. Dugger, 844 F. 2d, at 1452-1453 (footnote omitted).

16 As the court explained in Riley v. Wainwright, 517 So. 2d, at 659: "If the jury's recommendation, upon which the judge must rely, results from an unconstitutional procedure, then the entire sentencing process necessarily is tainted by that procedure."

553

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