542
Stevens, J., dissenting
an appellate court could cure a sentencing jury's weighing of an invalid aggravator—might have led a reasonable jurist down a road different from the one the Court followed in Espinosa.5 But in holding that a trial judge's sentence may be infected by the jury's consideration of an invalid aggravating factor, Espinosa did not address the entirely separate question of whether the jury's error could be cured or considered harmless either at the trial or the appellate level. Indeed, in subsequent proceedings the Supreme Court of Florida did conclude that the error in Espinosa's case was harmless and upheld his sentence of death. See Espinosa v. State, 626 So. 2d 165, 167 (1993) (ruling that Espinosa's HAC instruction claim was procedurally barred because he had challenged the HAC factor rather than the instruction itself and, alternatively, that any error in the instruction was harmless beyond a reasonable doubt), cert. denied, 511 U. S. 1152 (1994), and affirmed Espinosa's sentence. Our decision in Espinosa did not create a new rule prohibiting trial courts from curing a jury's error, rather it held that "if a weighing State decides to place capital sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances." 505 U. S., at 1082. This holding is a logical consequence of applying Godfrey to Florida's sentencing scheme.
In a sinuous, difficult to follow argument, the Court suggests that three hypothetical propositions of law somehow demonstrate that the narrow holding in Espinosa was not dictated by Godfrey and Tedder. First, the Court posits that a reasonable jurist might have believed that "[t]he mere cabining of the trial court's discretion" was alone enough to avoid constitutional error. Ante, at 532 (emphasis deleted).
5 The Court also relies heavily on a passage in our opinion in Walton v. Arizona, 497 U. S. 639 (1990), noting that a trial judge's failure to apply a narrowing construction to an invalid aggravator " 'does not necessarily require that a state appellate court vacate a death sentence based on that factor.' " Ante, at 537.
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