12
Per Curiam
it exercised its discretion to sentence petitioner to death.1 230 Va., at 108-109, 334 S. E. 2d, at 844-845.
Shortly after the Virginia Supreme Court affirmed petitioner's conviction and sentence, Tuggle v. Commonwealth, 228 Va. 493, 323 S. E. 2d 539 (1984), we held in Ake v. Oklahoma, 470 U. S. 68 (1985), that when the prosecutor presents psychiatric evidence of an indigent defendant's future dangerousness in a capital sentencing proceeding, due process requires that the State provide the defendant with the assistance of an independent psychiatrist. Id., at 83-84. Because petitioner had been denied such assistance, we vacated the State Supreme Court's judgment and remanded for further consideration in light of Ake. Tuggle v. Virginia, 471 U. S. 1096 (1985).
On remand, the Virginia Supreme Court invalidated the future dangerousness aggravating circumstance because of the Ake error. See Tuggle v. Commonwealth, 230 Va., at 108-111, 334 S. E. 2d, at 844-846. The court nevertheless reaffirmed petitioner's death sentence, reasoning that Zant permitted the sentence to survive on the basis of the vileness aggravator. 230 Va., at 110-111, 334 S. E. 2d, at 845-846. The Court of Appeals agreed with this analysis on federal habeas review, Tuggle v. Thompson, 57 F. 3d 1356, 1362-1363 (CA4 1995), as it had in the past.2 Quoting the Virginia Supreme Court, the Court of Appeals stated:
" 'When a jury makes separate findings of specific statutory aggravating circumstances, any of which could support a sentence of death, and one of the circumstances
1 Virginia's capital punishment statute involves a two-stage determination. The jury first decides whether the prosecutor has established one or both of the statutory aggravating factors. Va. Code Ann. §§ 19.2- 264.4(C)-(D) (1995). If the jury finds neither aggravator satisfied, it must impose a sentence of life imprisonment. Ibid. If the jury finds one or both of the aggravators established, however, it has full discretion to impose either a death sentence or a sentence of life imprisonment. Ibid.
2 See Smith v. Procunier, 769 F. 2d 170, 173 (CA4 1985).
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