242
Stevens, J., dissenting
should be treated no differently, for double jeopardy purposes, than if the jury had returned a verdict that expressly read: " 'We find the defendant not guilty of intentional murder but guilty of murder in the second degree.' " Id., at 191.3 The only rational explanation for such a verdict is a failure of proof on the issue of intent—a failure that should have precluded relitigation of that issue at sentencing. As Justice DeBruler of the Indiana Supreme Court explained in his dissenting opinion:
"At the trial, the prosecution used every resource at its disposal to persuade the jury that appellant had a knowing state of mind when he killed his victim. It failed to do so. At the sentencing hearing before the jury it had an opportunity to persuade the jury that appellant had an intentional state of mind when he killed his victim. The jury returned a recommendation of no death. At the sentencing hearing before the judge, the prosecution had yet another opportunity to demonstrate an intentional state of mind, and finally succeeded. In my view, the silent verdict of the jury on Count I, charging a knowing state of mind, must be deemed the constitutional equivalent of a final and immutable rejection of the State's claim that appellant deserves to die because he had an intentional state of mind. That verdict acquitted appellant of that condition which was necessary to impose the death penalty under this charge." Schiro v. State, 533 N. E. 2d 1201, 1209 (1989).
In this case the trial judge's decision to override the jury's recommendation against the death sentence rested entirely on his finding that Schiro had intentionally killed his vic-3 "American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has been found guilty on one but not on the second he cannot be tried again on the second . . . ." 355 U. S., at 194, n. 14. See also Price v. Georgia, 398 U. S. 323, 328-329 (1970).
Page: Index Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NextLast modified: October 4, 2007