246
Stevens, J., dissenting
Finally, the Court surmises that the jury "might have believed it could only return one verdict." Ante, at 233. In view of the trial court's instruction that the jury foreman "must sign and date the verdict(s) to which you all agree," App. 28, this speculation is unfounded. Similarly unwar-ranted is the majority's reliance upon isolated remarks by the prosecution and defense counsel to substantiate this speculation. Defense counsel understandably urged the jury to return only one verdict because he was seeking a verdict that would exonerate his client or minimize his culpability. Any one of 7 of the 10 forms submitted to the jury would have served that purpose. In fact, after defense counsel made the amorphous reference to one verdict in his closing argument, he went on to suggest that the jurors consider first the question of insanity, "because depending on that, you may just stop there or go on." App. to Brief for Respondents 17 (emphasis added).
As to the prosecutor's comment about "one verdict," id., at 27, if that statement meant that the jury could only return 1 of the 10 forms, it blatantly misstated Indiana law.8 More plausibly, the comment referred to a verdict in the general sense as the jury's one opportunity to return one or more verdict forms. In any event, we should not uphold a death sentence based on such an insubstantial and improper predicate.
Nothing the Indiana Supreme Court said supports the Court's speculation about the jury's reasons for failing to return a guilty verdict on Count I. Moreover, the Court
believed convicting Schiro of killing during the commission of rape (Count II) also required a knowing or intentional killing.
8 The judge's final instructions to the jury set forth no limitation on the number of verdicts it might properly return, and Indiana juries have regularly found a defendant guilty of both mens rea murder and felony murder with respect to a single killing. See, e. g., Roche v. State, 596 N. E. 2d 896 (Ind. 1992); Lewis v. State, 595 N. E. 2d 753 (Ind. App. 1992); Hopkins v. State, 582 N. E. 2d 345 (Ind. 1991).
Page: Index Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NextLast modified: October 4, 2007