On May 24, 1977, two Purolator guards, Russell Dempsey and Cecil
Newkirk, left Phoenix in an armored van on their run to banks in
Prescott, Sedona and Flagstaff. At the Bumblebee Road exit on
Interstate- 17, they were stopped by the Polands, who were
disguised as highway patrolmen and were driving a car fitted
with emergency lights.
The Polands took the guards captive and removed close to
$300,000 in cash. On May 25, 1977, authorities found the
abandoned Purolator van. That morning, Michael rented a boat at
the Lake Mead marina and piloted the boat to a seldom-used
landing, where he met his brother. They put the guards into
canvas bags, took them across the lake, and dumped them into the
water. The bodies surfaced 3 weeks later in a cove on the Nevada
side of the lake. The Polands were convicted in federal court on
robbery and kidnapping charges, and in state court on the murder
Michael Poland was executed by injection Wednesday, more than
two decades after he and his brother posed as highway patrolmen,
robbed an armored car and killed its two guards.
Asked if he had any last words, Michael Poland said he was
"I'd like to know if you're going to bring me lunch afterward,"
he said. "I'm really hungry. I can't think of anything else."
Michael's lawyers had unsuccessfully tried to convince courts
that he did not understand he was going to die and was therefore
mentally incompetent to be executed.
Michael raised his head several times to look at the window into
the witness chamber as his death warrant was being read. He
mouthed the words, "I love you," to two of his sons and a
daughter-in-law who witnessed the execution.
Michael's attorneys had claimed the 59-year-old was mentally
incompetent to be executed because three psychiatrists diagnosed
him as delusional. One of Michael's attorneys, Dale Baich, said
Michael believed he had the power to influence people and to
stop his execution by a force of his will. The defense's claim
that the stress of living on death row rendered Michael mentally
incompetent stayed his execution for a short time.
Start of Trial: October 23, 1979 (first trial), October 18, 1982
Convicted: November 24, 1979 (first trial), November 18, 1982
Sentenced to death: April 9, 1980 (first trial), February 3,
1983 (second trial)
Especially heinous/cruel/depraved (struck on appeal)
None sufficient to call for leniency
United States v. Poland, 659 F.2d 884 (9th Cit. 1981)
State v. Poland (Michael), 132 Ariz. 269, 645 P.2d 784 (1982)
State v. Poland (Michael), 144 Ariz. 412, 698 P.2d 207 (1985)
Poland v. Arizona, 476 U.S. 147, 106 S. Ct. 1749, 90 L. Ed. 2d
Poland v. Stewart, 117 F.3d 1094 (9th Cit. 1997)
Three Fried eggs, sunny side up; four slices of bacon; order of
hash browns; two slices of whole wheat toast, with two pats of
real butter; two individual serving size boxes of Raisin Bran
cereal; two cartons of milk; two cups of Tasters Choice coffee
Arizona Department of Corrections "Death Row" Web site
"Profiles of Arizona Death Row Inmates," Arizona Attorney
The Arizona Republic archives
Michael Kent Poland, 99-06-16, Montana
Michael Poland was executed by injection Wednesday, more than 2
decades after he and his brother posed as highway patrolmen, robbed
an armored car and killed its 2 guards.
Asked if he had any last words, Poland said he was hungry.
"I'd like to know if you're going to bring me lunch afterward,"
Poland said. "I'm really hungry. I can't think of anything else."
Poland's lawyers had unsuccessfully tried to convince courts that
Poland did not understand he was going to die and was therefore
mentally incompetent to be executed.
Poland raised his head several times to look at the window into the
witness chamber as his death warrant was being read. He mouthed the
words, "I love you," to 2 of his sons and a daughter-in-law who
witnessed the execution.
Poland's chest heaved several times as the lethal dose of
medications began flowing at 3:12 p.m. He puffed out his cheeks
twice before being declared dead at 3:14 p.m.
He was the 6th person executed in Arizona this year, a record. The
largest previous 1-year total was 5 executions in 1943.
Poland's attorneys had claimed the 59-year-old was mentally
incompetent to be executed because 3 psychiatrists diagnosed him as
delusional. One of Poland's attorneys, Dale Baich, said Poland
believed he had the power to influence people and to stop his
execution by a force of his will.
But a Pinal County judge ruled last week that Poland, even if he was
delusional, was still aware that he was being executed and why,
meeting the legal standard for mental competence. The ruling was
upheld on appeal.
Poland and his younger brother, Patrick, were sentenced to die for
robbing an armored van of $300,000, before killing guards Cecil
Newkirk and Russell Dempsey by wrapping them in canvas bags and
dumping them into Lake Mead.
Both guards' widows wrote to the clemency board, which rejected
Poland's plea for a commutation or reprieve on Tuesday, to say the
Polands should not be spared.
"They planned and executed the death of 2 very precious human beings.
They deprived them of a full life and also cheated me of many happy
years with my husband I still love so very much," Lola Newkirk wrote.
Lola Newkirk witnessed the execution with 16 other relatives of the
victims. Dempsey's widow, Jane, did not attend.
The Poland brothers were dressed in fake law-enforcement uniforms
and driving a rented car outfitted with emergency lights when they
pulled over Newkirk and Dempsey on May 24, 1977. They were driving a
Purolator Inc. armored van from Phoenix to banks in northern Arizona
along Interstate 17.
The Polands overpowered the guards before snatching nearly $300,000
in cash and coins. They drove Newkirk and Dempsey 250 miles from the
robbery site to Lake Mead, where they wrapped the guards in
custom-made canvas bags weighted with rocks and dropped them to a
The guards' bodies were found weeks later floating on the Nevada
side of the reservoir, which forms a portion of the Nevada-Arizona
Police found the Polands on a spending spree back in their hometown
of Prescott after checking the registration of a truck that had been
pulled from the sand by a tow truck near the site of the guards'
deaths. They were arrested nearly a year after Newkirk and Dempsey
The Polands were sentenced to 100 years in prison on federal
kidnapping and robbery charges in 1979. They were convicted of
1st-degree murder twice, in 1979 and in 1982. Their 1st convictions
were overturned on appeal.
Patrick Poland could be executed as early as this year but no date
has been set.
In the Supreme Court of the
476 U.S. 147
106 S.Ct. 1749
90 L.Ed.2d 123
Patrick Gene POLAND, Petitioner,
Michael Kent POLAND,
Nos. 85-5023, 85-5024.
Argued Feb. 24, 1986.
Decided May 5, 1986.
Petitioners robbed a bank van of
$281,000 in cash and killed the guards by dumping them into a lake
in sacks weighted with rocks. Petitioners were convicted of first-degree
murder in an Arizona state court. At a separate hearing, while
finding that the statutory aggravating circumstance that the offense
was committed for "pecuniary gain" was not present because it
applied only to contract killings, the trial judge sentenced
petitioners to death upon finding that the statutory aggravating
circumstance that the offense was committed in "an especially
heinous, cruel, or depraved manner" was present. The Arizona Supreme
Court, while reversing and remanding for a retrial on other grounds,
held that the evidence was insufficient to support a finding of the
"especially heinous" circumstance, but that the trial judge erred in
finding the "pecuniary gain" circumstance limited to contract
killings, and that if petitioners were again convicted the judge
might find this circumstance present. On remand, petitioners were
again convicted of first-degree murder and the trial judge again
sentenced them to death, finding that both the "pecuniary gain" and
"especially heinous" circumstances were present. The Arizona Supreme
Court affirmed, rejecting petitioners' argument that the Double
Jeopardy Clause barred reimposition of the death penalty. The court
found the evidence still insufficient to support the "especially
heinous" circumstance but sufficient to support the "pecuniary gain"
Held: Reimposing the death
penalty on petitioners did not violate the Double Jeopardy Clause.
(a) When a conviction is reversed
on appeal, it is nullified and " 'the slate wiped clean,' " so that
if the defendant is convicted again, he may constitutionally be
subjected to whatever punishment is lawful. Bullington v.
Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d
270. This rationale is, however, inapplicable where a jury agrees or
an appellate court decides that the prosecution "has not proved its
case." Id., at 443, 101 S.Ct., at 1860. Therefore, the
relevant inquiry in these cases is whether the sentencing judge or
the reviewing court has "decided that the prosecution has not proved
its case" for the death penalty and hence has "acquitted"
petitioners. Bullington v. Missouri, supra; Arizona v. Rumsey,
467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164. Pp. 152-154.
(b) The trial judge's rejection of
the "pecuniary gain" aggravating circumstance was not an "acquittal"
of that circumstance for double jeopardy purposes, and did not
foreclose its consideration by the reviewing court. Moreover,
because the reviewing court did not find the evidence legally
insufficient to justify imposition of the death penalty, there was
no death penalty "acquittal" by that court. The Double Jeopardy
Clause, therefore, did not foreclose a second sentencing hearing at
which the "clean slate" rule applied. Pp. 154-157.
144 Ariz. 388, 698 P.2d 183, and
144 Ariz. 412, 698 P.2d 207 (1985), affirmed.
WHITE, J., delivered the opinion
of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, STEVENS,
and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion,
in which BRENNAN and BLACKMUN, JJ., joined, post, p. ---.
W.K. Wilhelmsen, for petitioner in
Gerald R. Grant, Phoenix, Ariz.,
for respondent in each case.
Justice WHITE delivered the
opinion of the Court.
The question presented is
whether the Double Jeopardy Clause bars a further capital
sentencing proceeding when, on appeal from a sentence of death,
the reviewing court finds the evidence insufficient to support
the only aggravating factor on which the sentencing judge relied,
but does not find the evidence insufficient to support the death
* In 1977 petitioners Patrick
and Michael Poland, disguised as police officers, stopped a
Purolator van that was making cash deliveries to various banks
in northern Arizona. After removing some $281,000 in cash from
the van, petitioners took the two Purolator guards to a lake and
dumped them into the water in sacks weighted with rocks.
Autopsies indicated that the most probable cause of the guards'
death was drowning, although one may have died of a heart attack.
It was not possible to determine if the guards were drugged, but
there was no evidence of a struggle.
The jury disbelieved
petitioners' alibi defense and convicted them of first-degree
murder. Pursuant to former Ariz.Rev.Stat.Ann. § 13-454(A) (Supp.1973),
the trial judge then sat as sentencer in a separate proceeding.
At the hearing, the prosecution, relying on the evidence
presented at trial, argued that two statutory aggravating
circumstances were present: (1) that petitioners had "committed
the offense as consideration for the receipt, or in expectation
of the receipt, of [something] of pecuniary value," former
Ariz.Rev.Stat.Ann. § 13-454(E)(5) (Supp.1973); and (2) that
petitioners had "committed the offense in an especially heinous,
cruel, or depraved manner," former Ariz.Rev.Stat. § 13-454(E)(6)
(Supp.1973). The trial judge made the following finding with
respect to the "pecuniary gain" aggravating circumstance:
"The court finds the
aggravating circumstance in § 13-454E(3) [sic] is not
present. This presumes the legislative intent was to cover a
contract killing. If this presumption is inaccurate, the
evidence shows the defendants received something of pecuniary
value, cash in the amount of $281,000.00.
"This, then, would be an
aggravating circumstance." App. 15-16.
The judge found that the "especially
heinous, cruel, [or] depraved" aggravating circumstance was
present, stating that the murders were "shockingly evil,
insensate, and marked by debasement." Id., at 16. Finding
that this aggravating circumstance outweighed the mitigating
evidence, the judge sentenced petitioners to death. Id.,
On appeal, petitioners argued
that the evidence was insufficient to support the judge's
finding of the "especially heinous, cruel, or depraved"
aggravating circumstance. They also argued that the jury's
verdict was tainted by a jury-room discussion of evidence not
admitted at trial. The Arizona Supreme Court agreed that the
jury's verdict was tainted, necessitating reversal and retrial.
State v. Poland, 132 Ariz. 269, 283-285, 645 P.2d 784,
The court next held that the
evidence on which the State relied at the first sentencing
hearing was insufficient to support a finding of the "especially
heinous, cruel, or depraved" aggravating circumstance. Id.,
at 285, 645 P.2d, at 800. Finally, the court stated that the
trial court "mistook the law when it did not find that the
defendants 'committed the offense as consideration for the
receipt, or in expectation of the receipt, of anything of
pecuniary value.' " Ibid.
The court explained that this
aggravating circumstance is not limited to situations involving
contract killings, see State v. Clark, 126 Ariz. 428, 616
P.2d 888 (1980), and added that "[u]pon retrial, if the
defendants are again convicted of first degree murder, the court
may find the existence of this aggravating circumstance." 132
Ariz., at 286, 645 P.2d, at 801.
On remand, petitioners were
again convicted of first-degree murder. At the sentencing
hearing, the prosecution, relying on the evidence presented at
the second trial and also presenting additional evidence, argued
that the "pecuniary gain" and "especially heinous, cruel, or
depraved" aggravating factors were present in each petitioner's
case. The prosecution alleged a third aggravating circumstance
in petitioner Patrick Poland's case: previous conviction of "a
felony . . . involving the use or threat of violence on another
person," Ariz.Rev.Stat.Ann. § 13-454(E)(2) (Supp.1973).
The trial judge found all of the aggravating circumstances
alleged by the prosecution, and again sentenced both petitioners
Petitioners argued on appeal,
as they had at their second sentencing hearing, that the Double
Jeopardy Clause barred reimposition of the death penalty. Their
theory was that the Arizona Supreme Court's decision on their
first appeal that the evidence failed to support the "especially
heinous, cruel, or depraved" aggravating circumstance amounted
to an "acquittal" of the death penalty. Cf. Bullington v.
Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270
(1981); Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305,
81 L.Ed.2d 164 (1984). A majority of the Arizona Supreme Court
rejected this argument, stating:
"Our holding in Poland I
. . . was simply that the death penalty could not be based
solely upon [the 'especially heinous, cruel, or depraved']
aggravating circumstance because there was insufficient evidence
to support it. This holding was not tantamount to a death
penalty 'acquittal.' " State v. Poland (Patrick), 144
Ariz. 388, 404, 698 P.2d 183, 199 (1985). Accord, State v.
Poland (Michael), 144 Ariz. 412, 698 P.2d 207 (1985).
The court found the evidence
still insufficient to support the "especially heinous, cruel, or
depraved" aggravating circumstance, but sufficient to support
the "pecuniary gain" aggravating circumstance with respect to
both defendants and the "prior conviction involving violence"
circumstance with respect to Patrick Poland. State v. Poland
(Patrick), supra, at 404-406, 698 P.2d, at 199-201; accord,
State v. Poland (Michael), supra.
After again reviewing and
independently weighing the mitigating and aggravating
circumstances, the court concluded that the death penalty was
appropriate in each petitioner's case. We granted certiorari to
consider whether reimposing the death penalties on petitioners
violated the Double Jeopardy Clause. 474 U.S. 816, 106 S.Ct. 60,
88 L.Ed.2d 49 (1985). We hold that it did not.
In Bullington v. Missouri,
supra, this Court held that a defendant sentenced to life
imprisonment by a capital sentencing jury is protected by the
Double Jeopardy Clause against imposition of the death penalty
in the event that he obtains reversal of his conviction and is
retried and reconvicted. The Court recognized the usual rule to
be that when a defendant obtains reversal of his conviction on
"the original conviction has
been nullified and 'the slate wiped clean.' Therefore, if the
defendant is convicted again, he constitutionally may be
subjected to whatever punishment is lawful, subject only to the
limitation that he receive credit for time served." Id.,
451 U.S., at 442, 101 S.Ct., at 1860 (quoting North Carolina
v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 2078, 23 L.Ed.
However, the Court found that
its prior decisions had created an exception to this rule: "[T]he
'clean slate' rationale . . . is inapplicable whenever a jury
agrees or an appellate court decides that the prosecution has
not proved its case." Bullington, 451 U.S., at 443, 101
S.Ct., at 1860.
Although it is usually "impossible
to conclude that a sentence less than the statutory maximum 'constitute[s]
a decision to the effect that the government has failed to prove
its case,' " ibid. (quoting Burks v. United States,
437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)), the
Court found that Missouri, by "enacting a capital sentencing
procedure that resembles a trial on the issue of guilt or
innocence, . . . explicitly requires the jury to
determine whether the prosecution has 'proved its case,' " id.,
at 444, 101 S.Ct., at 1861 (emphasis in original).
Accordingly, the Court held
that the jury's decision to sentence Bullington to life
imprisonment after his first conviction should be treated as an
"acquittal" of the death penalty under the Double Jeopardy
Recently, the Court held that
the rationale of Bullington applies to the Arizona
capital sentencing scheme at issue in this case. Arizona v.
In Rumsey, the trial judge erred in exactly the same way
as the trial judge did at petitioners' first sentencing hearing
in these cases, by construing the "pecuniary gain" aggravating
circumstance as limited to "murder for hire" situations. Unlike
the trial judge in this case, however, the trial judge in
Rumsey found no aggravating circumstances, and entered a
sentence of life imprisonment. This Court held that "[t]he
double jeopardy principle relevant to [Rumsey's] case is the
same as that invoked in Bullington: an acquittal on the
merits by the sole decisionmaker in the proceeding is final and
bars retrial on the same charge." Id., at 211, 104 S.Ct.,
Under Bullington and
Rumsey, therefore, the relevant inquiry in the cases before
us is whether the sentencing judge or the reviewing court has "decid[ed]
that the prosecution has not proved its case" for the death
penalty and hence has "acquitted" petitioners. Bullington,
451 U.S., at 443, 101 S.Ct., at 1860.
At no point during petitioners'
first capital sentencing hearing and appeal did either the
sentencer or the reviewing court hold that the prosecution had "failed
to prove its case" that petitioners deserved the death penalty.
Plainly, the sentencing judge did not acquit, for he imposed the
death penalty. While the Arizona Supreme Court held that the
sentencing judge erred in relying on the "especially heinous,
cruel, or depraved" aggravating circumstance, it did not hold
that the prosecution had failed to prove its case for the death
Indeed, the court clearly
indicated that there had been no such failure by remarking that
"the trial court mistook the law when it did not find that the
defendants 'committed the offense as consideration for the
receipt, or in expectation of the receipt, of anything of
pecuniary value,' " and that "[u]pon retrial, if the defendants
are again convicted of first degree murder, the court may find
the existence of this aggravating circumstance," 132 Ariz., at
286, 645 P.2d, at 801.
Petitioners argue, however,
that the Arizona Supreme Court "acquitted" them of the death
penalty by finding the "evidence [insufficient] to support the
sole aggravating circumstances found by the sentencer." Brief
for Petitioners 16. Petitioners' implicit argument is, first,
that the sentencing judge "acquitted" them of the "pecuniary
gain" aggravating circumstance, and second, that the Double
Jeopardy Clause rendered this "acquittal" final, so that the
evidence relating to this circumstance was effectively removed
from the case at the time of petitioners' first appeal.
We reject the fundamental
premise of petitioners' argument, namely, that a capital
sentencer's failure to find a particular aggravating
circumstance alleged by the prosecution always constitutes an "acquittal"
of that circumstance for double jeopardy purposes. Bullington
indicates that the proper inquiry is whether the sentencer or
reviewing court has "decided that the prosecution has not proved
its case" that the death penalty is appropriate.
We are not prepared to extend
Bullington further and view the capital sentencing
hearing as a set of minitrials on the existence of each
aggravating circumstance. Such an approach would push the
analogy on which Bullington is based past the breaking
Aggravating circumstances are
not separate penalties or offenses, but are "standards to guide
the making of [the] choice" between the alternative verdicts of
death and life imprisonment. 451 U.S., at 438, 101 S.Ct., at
1858. Thus, under Arizona's capital sentencing scheme, the
judge's finding of any particular aggravating circumstance does
not of itself "convict" a defendant (i.e., require the
death penalty), and the failure to find any particular
aggravating circumstance does not "acquit" a defendant (i.e.,
preclude the death penalty).
It is true that the sentencer
must find some aggravating circumstance before the death
penalty may be imposed, and that the sentencer's finding, albeit
erroneous, that no aggravating circumstance is present is an "acquittal"
barring a second death sentence proceeding. Arizona v. Rumsey,
467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). This is
"the law attaches particular
significance to an acquittal. To permit a second trial after an
acquittal, however mistaken the acquittal may have been, would
present an unacceptably high risk that the Government, with its
vastly superior resources, might wear down the defendant so that
'even though innocent he may be found guilty.' " United
States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57
L.Ed.2d 65 (1978) (quoting Green v. United States, 355
U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)).
This concern with protecting
the finality of acquittals is not implicated when, as in these
cases, a defendant is sentenced to death, i.e., "convicted."
There is no cause to shield such a defendant from further
litigation; further litigation is the only hope he has. The
defendant may argue on appeal that the evidence presented at his
sentencing hearing was as a matter of law insufficient to
support the aggravating circumstances on which his death
sentence was based, but the Double Jeopardy Clause does not
require the reviewing court, if it sustains that claim, to
ignore evidence in the record supporting another aggravating
circumstance which the sentencer has erroneously rejected.
Such a rule would have the odd
and unacceptable result of requiring a reviewing court to enter
a death penalty "acquittal" even though that court is of the
view that the State has "proved its case." Our decisions in
Burks and Bullington do not support such a rule,
which would certainly give the prosecution cause to "complain of
prejudice." Burks, 437 U.S., at 16, 98 S.Ct., at 2149.
We hold, therefore, that the
trial judge's rejection of the "pecuniary gain" aggravating
circumstance in this case was not an "acquittal" of that
circumstance for double jeopardy purposes, and did not foreclose
its consideration by the reviewing court. Furthermore, because
the reviewing court did not find the evidence legally
insufficient to justify imposition of the death penalty, there
was no death penalty "acquittal" by that court. The Double
Jeopardy Clause, therefore, did not foreclose a second
sentencing hearing at which the "clean slate" rule applied.
The judgment of the Supreme
Court of Arizona is
Justice MARSHALL, with whom
Justice BRENNAN and Justice BLACKMUN join, dissenting.
There is one difference
between these cases and Arizona v. Rumsey, 467 U.S. 203,
104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), in which seven Members of
this Court interpreted the Double Jeopardy Clause to bar
imposition of a death sentence after a life sentence has been
reversed on appeal: the sentencing judge in petitioners' cases
made two errors of state law, while Rumsey's judge made only one.
According to the majority, that makes the difference between
life and death.
In Rumsey, the
defendant was convicted of murder and robbery; the trial judge
sentenced him to life imprisonment upon finding that none of the
statutory aggravating circumstances provided by Arizona law
applied to the defendant's case. One of those aggravating
circumstances—murder committed as consideration for pecuniary
gain—the court rejected in the belief that it applied only to
murders for hire.
On appeal, the Supreme Court
of Arizona held that murder for pecuniary gain could also
include murder in the course of a robbery. Accordingly, it set
aside Rumsey's life sentence and remanded for resentencing. This
time, Rumsey was given a death sentence, supported by the
aggravating circumstance of murder for pecuniary gain. On writ
of certiorari, this Court concluded that the Arizona death-sentencing
procedure is equivalent to a trial for purposes of the Double
Jeopardy Clause, under the doctrine of Bullington v.
Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270
We then concluded that
Rumsey's initial life sentence had constituted an "acquittal" on
the merits of the central issue of the proceeding: whether death
was the appropriate punishment for the offense. Under
traditional double jeopardy principles, retrial of that issue
was thereafter precluded, even though the "acquittal" was
predicated upon a mistaken interpretation of state law.
Rumsey, supra, 467 U.S., at 211, 104 S.Ct., at 2310.
Petitioners, Patrick and
Michael Poland, were convicted of the murders of two guards in
the course of a robbery. Like the trial court in Rumsey,
the sentencing court rejected the aggravating circumstance of
murder for pecuniary gain, believing that it applied only to
murders for hire. Unlike the Rumsey court, however, the
trial judge did not then impose a life sentence. Instead, he
concluded that another of the statutory aggravating
circumstances was present: that the murders were "especially
heinous, cruel, or depraved."
Based on this sole aggravating
circumstance, therefore, the court sentenced petitioners to
death. On joint appeal, the Arizona Supreme Court reviewed the
death sentences and concluded that the evidence was insufficient
as a matter of state law to establish that the murders had been
"especially heinous, cruel, or depraved," because the State had
not proved that the victims had suffered, as state law requires.
Before remanding, however, the
court took the opportunity, sua sponte, to note that
murder for pecuniary gain was not limited to murders for hire,
and therefore was available as a possible alternative basis for
a death sentence. On remand, the trial court once more sentenced
petitioners to death, again concluding that the murders were "especially
heinous, cruel, or depraved," and also that they were committed
for pecuniary gain.
The Arizona Supreme Court again reversed the aggravating
circumstance of "especially heinous, cruel, or depraved," but
this time upheld the death sentences on the ground of pecuniary
The Court makes much of the
fact that, unlike Rumsey, petitioners never received sentences
of life imprisonment. Yet the majority fails to recognize the
teaching of Burks v. United States, 437 U.S. 1, 98 S.Ct.
2141, 57 L.Ed.2d 1 (1978). In Burks, we held that an
appellate reversal of a conviction, based on the legal
conclusion that the evidence was insufficient to support the
verdict, has the same effect under the Double Jeopardy Clause as
an acquittal at trial. Id., at 16, 98 S.Ct., at 2150. "To
hold otherwise," the Court concluded, "would create a purely
arbitrary distinction between those in petitioner's position and
others who would enjoy the benefit of a correct decision by the
District Court." Id., at 11, 98 S.Ct., at 2147.
That arbitrary distinction is
precisely the one that the Court creates today. The initial
death sentences that petitioners received were "convictions,"
see Rumsey, supra, and their reversal for insufficiency
of the evidence to support the sole aggravating circumstance
found by the sentencing judge must, under Burks, be
accorded the same effect as an "acquittal" at trial—the same
effect as Rumsey's life sentence. As much as Rumsey's life
sentence constituted the all-important "acquittal on the merits,"
even though predicated on an error of law, so, too, did the
reversal of petitioners' death sentences.
The analogy, first drawn in
Bullington v. Missouri, supra, between an acquittal at trial
and an "acquittal" of death at sentencing, is not perfect, and
the imperfections perhaps can explain the majority's
mischaracterization of the issue in these cases. At trial, a
defendant is charged with an offense containing certain
specified elements; he is either convicted or acquitted of that
offense, the trier of fact having concluded that the prosecution
has or has not proved all the elements of the offense.
The sentencing proceeding,
however, is quite different. In Arizona, for example, a death
sentence may be imposed if any one of seven statutory
aggravating factors is proved. While it might be possible to
treat each aggravating circumstance as a separate "offense," of
which a defendant is either convicted or acquitted, this Court
has taken a different approach. We have said that "on the merits"
of a capital proceeding, the "central issue [is] whether death
was the appropriate punishment for [the] offense." Rumsey,
467 U.S., at 211, 104 S.Ct., at 2310. Thus, the "offense" for
which the defendant receives his "conviction" or "acquittal" is
that of the appropriateness of the death penalty, not the
elements of any particular aggravating factor. Ante, at
153, n. 3.
In these cases, the trial
judge found death to be the appropriate punishment because
petitioners' offenses were "especially heinous, cruel, or
depraved." On appeal, the Arizona Supreme Court held that the
sole basis offered by the trial court to support its "conviction"
of petitioners was insufficient as a matter of law.
The majority believes that,
since other aggravating circumstances might have been found to
support the "convictions," it was permissible to remand the
cases for further factfinding on those alternative factors. But
this overlooks what our cases have said a conviction is
in the sentencing context—a determination that death is the
appropriate penalty, not separate trials on the existence of all
statutory aggravating circumstances, conducted seriatim.
In these cases, that
determination was reversed because there was insufficient
evidence to support the ground relied on by the trial judge in
reaching it. Any remand for further factfinding on the question
whether the death sentence should be imposed was thereafter
prohibited. See Rumsey, supra, at 211-212, 104 S.Ct., at
2310-2311. In no other circumstance would the Double Jeopardy
Clause countenance the offer of a second chance to the State and
the trial judge to find a better theory upon which to base a
conviction. Nor should it do so here. I dissent.