Cite as: 520 U. S. 518 (1997)
Stevens, J., dissenting
phasis deleted). This suggestion is doubly flawed. Given that the judge's instruction to the jury failed to narrow the HAC aggravator, there is no reason to believe that he appropriately narrowed the factor in his own deliberations.7 More importantly, even if he did apply a limiting definition, his sentencing decision was made without the benefit of an untainted recommendation from the jury, and, under Florida law, he could not have simply resentenced the petitioner without regard to the jury's tainted recommendation. Nor can one simply conclude that this error made no practical difference in petitioner's sentence. There is nothing in the record to suggest that had the jury recommended a life sentence, the judge would have found that "the facts suggesting a sentence of death were so clear and convincing that virtually no reasonable person could differ," as Tedder requires.
Here, again, the Court finds that our statements in cases like Walton v. Arizona, 497 U. S. 639 (1990), that a state appellate court may affirm a death sentence resulting from an unconstitutionally broad aggravator by applying a limiting definition, suggest that Espinosa is a new rule. The majority's analysis confuses an appellate court's application of a limiting definition on appellate review with a trial judge's deference to a tainted jury recommendation. The judge in this case did not indicate that he was applying a limiting definition of the HAC factor, or that he was in some other way curing or discounting the error in the jury instruction. At the time of petitioner's sentencing, given Godfrey and Tedder, this rendered petitioner's death sentence constitutionally defective.
As a matter of logic and law there was nothing new about Espinosa's holding that the jury plays a central role in Florida's capital sentencing scheme. Moreover, as statistics that
7 Nothing in the record indicates that the judge recognized that the jury instruction was erroneous, or that he sought to cure that error in his own weighing process. In finding that the HAC aggravator was present, the judge merely stated: "The facts speak for themselves." App. 20.
545
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