396
Opinion of Thomas, J.
posed. There is no reason to treat such evidence differently than other relevant evidence is treated"). Petitioner does not dispute that, as a general matter, such evidence is appropriate for the sentencing jury's consideration. See Reply Brief for Petitioner 15. His objection is that the two non-statutory aggravating factors were duplicative, vague, and overbroad so as to render their use in this case unconstitutional, a point with which the Fifth Circuit agreed, 132 F. 3d, at 250-251, although it ultimately ruled in the Government's favor on the ground that the alleged error was harmless beyond a reasonable doubt, id., at 251-252.
The Government here renews its argument that the non-statutory aggravators in this case were constitutionally valid. At oral argument, however, it was suggested that this case comes to us on the assumption that the nonstatu-tory aggravating factors were invalid because the Government did not cross-appeal on the question. Tr. of Oral Arg. 25. As the prevailing party, the Government is entitled to defend the judgment on any ground that it properly raised below. See, e. g., El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 479 (1999); Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 364 (1994) ("A prevailing party need not cross-petition to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not to change, the judgment"). It further was suggested that because we granted certiorari on the Government's rephrasing of petitioner's questions and because the third question—"whether the court of appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reasonable doubt"—presumes error, we must assume the nonstatutory aggravating factors were erroneous. Tr. of Oral Arg. 25-27. We are not convinced that the reformulated question presumes error. The question whether the nonstatutory aggravating factors were constitutional is fairly included within the third question pre-
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007