 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SOCHOR v. FLORIDA
certiorari to the supreme court of florida
No. 91-5843.   Argued March 2, 1992-Decided June 8, 1992

After a Florida jury found petitioner Sochor guilty of capital murder,
 the jury was instructed at the penalty hearing on the possibility of
 finding four aggravating factors, including the State's ``heinousness''
 and ``coldness'' factors.  The jury was also charged with weighing any
 mitigating circumstances it might find against the aggravating ones
 in reaching an advisory verdict as to whether Sochor's sentence
 should be life imprisonment or death.  The jury's recommendation of
 death was adopted by the trial court, which found all four aggravat-
 ing circumstances defined in the jury instructions and no mitigating
 circumstances.  The State Supreme Court held, among other things,
 that the question whether the jury instruction on the heinousness
 factor was unconstitutionally vague had been waived for failure to
 object.  The court also held that the evidence failed to support the
 trial judge's finding of the coldness factor, but nevertheless affirmed
 the death sentence.
Held:
   1.The application of the heinousness factor to Sochor did not
 result in reversible error.  Pp.4-9.
    (a)In a weighing State like Florida, Eighth Amendment error
 occurs when the sentencer weighs an ``invalid'' aggravating factor in
 reaching the decision to impose a death sentence.  See Clemons v.
 Mississippi, 494 U.S. 738, 752.  While federal law does not require
 the state appellate court reviewing such error to remand for resen-
 tencing, the court must, short of remand, either itself reweigh
 without the invalid aggravating factor or determine that weighing the
 invalid factor was harmless error.  See, e. g., Parker v. Dugger, 498
 U.S. ___, ___.  P.4.
    (b)This Court lacks jurisdiction to address Sochor's claim that
 the jury instruction on the heinousness factor was unconstitutionally
 vague.  The State Supreme Court indicated with requisite clarity that
 its rejection of the claim was based on an alternative state ground,
 see, e. g., Michigan v. Long, 463 U.S. 1032, 1041, and Sochor has
 said nothing to persuade the Court that this state ground is either
 not adequate or not independent, see Herb v. Pitcairn, 324 U.S. 117,
 125-126.  Pp.4-7.
    (c)No Eighth Amendment violation occurred when the trial
 judge weighed the heinousness factor.  Although the State Supreme
 Court's recent decisions may have evinced inconsistent and overbroad
 constructions of the heinousness factor that leave trial judges without
 sufficient guidance in other factual situations, that court has consis-
 tently held that heinousness is properly found where, as here, the
 defendant strangled a conscious victim.  Under Walton v. Arizona,
 497 U.S. ___, ___, it must be presumed that the trial judge in the
 case at hand was familiar with this body of case law, which, at a
 minimum, gave the judge ``some guidance,'' ibid.  This is all that the
 Eighth Amendment requires.  Pp.7-9.
   2.The application of the coldness factor to Sochor constituted
 Eighth Amendment error that went uncorrected in the State Supreme
 Court.  Pp.9-12.
    (a)Sochor's claim that an Eighth Amendment violation occurred
 when the jury ``weighed'' the coldness factor is rejected.  Because,
 under Florida law, the jury does not reveal the aggravating factors
 on which it relies, it cannot be known whether the jury actually
 relied on the coldness factor here.  This Court will not presume that
 a general verdict rests on a ground that the evidence does not
 support.  Griffin v. United States, 502 U.S. ___, ___.  Pp.9-10.
    (b)However, Eighth Amendment error occurred when the trial
 judge weighed the coldness factor.  In Florida, the judge is at least
 a constituent part of the ``sentencer'' for Clemons purposes, and there
 is no doubt that the judge ``weighed'' the coldness factor in this case.
 Nor is there any question that the factor was ``invalid'' for Clemons
 purposes, since the State Supreme Court found it to be unsupported
 by the evidence.  See Parker, supra, at ___.  Pp.10-11.
    (c)The State Supreme Court did not cure the Eighth Amend-
 ment error.  That court generally does not reweigh evidence indepen-
 dently.  See, e. g., Parker, supra, at ___.  Nor did that court support
 the death verdict by performing harmless-error analysis, since its
 opinion fails to mention ``harmless error'' and expressly refers to the
 quite different inquiry whether Sochor's sentence was proportional,
 and since only one of the four cases cited by the court contained
 explicit harmless-error language.  Pp.11-12.
580 So.2d 595, vacated and remanded.

 Souter, J., delivered the opinion of the Court, Part I of which was
unanimous, Parts II-A and II-B of which were joined by Rehnquist,
C. J., and White, O'Connor, Scalia, Kennedy, and Thomas, JJ., Part
III-A of which was joined by Rehnquist, C. J., and White, O'Connor,
Kennedy, and Thomas, JJ., Part III-B-1 of which was joined by
Rehnquist, C. J., and White, Blackmun, Stevens, O'Connor, Kenne-
dy, and Thomas, JJ., and Parts III-B-2 and IV of which were joined
by Blackmun, Stevens, O'Connor, and Kennedy, JJ.  O'Connor, J.,
filed a concurring opinion.  Rehnquist, C. J., filed an opinion concur-
ring in part and dissenting in part, in which White and Thomas, JJ.,
joined.  Stevens, J., filed an opinion concurring in part and dissenting
in part, in which Blackmun, J., joined.  Scalia, J., filed an opinion
concurring in part and dissenting in part.



NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
--------
No. 91-5843
--------
DENNIS SOCHOR, PETITIONER v. FLORIDA
on writ of certiorari to the supreme court of
florida
[June 8, 1992]
  Justice Souter delivered the opinion of the Court.
Under Florida law, after a defendant is found guilty of
capital murder, a separate jury proceeding is held as the
first of two steps in deciding whether his sentence should
be life imprisonment or death.  Fla. Stat. 921.141(1)
(1991).  At the close of such aggravating and mitigating
evidence as the prosecution and the defense may introduce,
the trial judge charges the jurors to weigh whatever
aggravating and mitigating circumstances or factors they
may find, and to reach an advisory verdict by majority vote.
921.141(2).  The jury does not report specific findings of
aggravating and mitigating circumstances, but if, at the
second sentencing step, the judge decides upon death, he
must issue a written statement of the circumstances he
finds.  921.141(3).  A death sentence is then subject to
automatic review by the Supreme Court of Florida.
921.141(4).
  A Florida trial court sentenced petitioner to death after
a jury so recommended, and the Supreme Court of Florida
affirmed.  We must determine whether, as petitioner
claims, the sentencer in his case weighed either of two
aggravating factors that he claims were invalid, and if so,
whether the State Supreme Court cured the error by
holding it harmless.  We answer yes to the first question
and no to the second, and therefore vacate the judgment of
the Supreme Court of Florida and remand.

                            I
  On New Year's Eve, 1981, Petitioner Dennis Sochor met
a woman in a bar in Broward County, Florida.  Sochor tried
to rape her after they had left together, and her resistance
angered him to the point of choking her to death.  He was
indicted for first-degree murder and kidnaping and, after a
jury trial, was found guilty of each offense.
  At the penalty hearing, aggravating and mitigating
evidence was offered, and the jury was instructed on the
possibility of finding four aggravating circumstances, two of
which were that
-the crime for which the defendant is to be sentenced
was especially wicked, evil, atrocious or cruel, and
[that] the crime for which the defendant is to be
sentenced was committed in a cold, calculated and
premeditated manner, without any pretense of moral or
legal justification.-  App. 326-327.
The judge then explained to the jury that it could find
certain statutory and any nonstatutory mitigating circum-
stances, which were to be weighed against any aggravating
ones.  By a vote of 10 to 2, the jury recommended the death
penalty for the murder.  The trial court adopted the jury's
recommendation, finding all four aggravating circumstances
as defined in the jury instructions and no circumstances in
mitigation.
  The Supreme Court of Florida affirmed.  580 So. 2d 595
(1991).  It declined to reverse for unconstitutional vague-
ness in the trial judge's instruction that the jury could find
as an aggravating factor that -the crime for which the
defendant is to be sentenced was especially wicked, evil,
atrocious or cruel- (hereinafter, for brevity, the -heinous-
ness factor,- after the statute's words -heinous, atrocious, or
cruel,- Fla. Stat. 921.141(5)(h) (1991)).  The court held the
issue waived for failure to object and the claim lacking
merit in any event.  580 So. 2d, at 602-603, and n. 10.  The
court also rejected Sochor's claim of insufficient evidence to
support the trial judge's finding of the heinousness factor,
citing evidence of the victim's extreme anxiety and fear
before she died.  The State Supreme Court did agree with
Sochor, however, that the evidence failed to support the
trial judge's finding that -the crime . . . was committed in
a cold, calculated, and premeditated manner without any
pretense of moral or legal justification- (hereinafter the
coldness factor), holding this factor to require a -height-
ened- degree of premeditation not shown in this case.  Id.,
at 603.  The State Supreme Court affirmed the death
sentence notwithstanding the error, saying that:
      -[1] [W]e . . . disagree with Sochor's claim that his
death sentence is disproportionate.  [2] The trial court
carefully weighed the aggravating factors against the
lack of any mitigating factors and concluded that death
was warranted.  [3] Even after removing the aggravat-
ing factor of cold, calculated, and premeditated there
still remain three aggravating factors to be weighed
against no mitigating circumstances.  [4] Striking one
aggravating factor when there are no mitigating
circumstances does not necessarily require resentenc-
ing.  Robinson v. State, 574 So. 2d 108 (Fla. 1991);
Holton v. State, 573 So. 2d 284 (Fla. 1990); James v.
State, 453 So. 2d 786 (Fla.), cert. denied, 469 U. S.
1098 . . . (1984); Francois v. State, 407 So. 2d 885
(Fla. 1981), cert. denied, 458 U. S. 1122 . . . (1982).  [5]
Under the circumstances of this case, and in compari-
son with other death cases, we find Sochor's sentence
of death proportionate to his crime.  E.g., Hitchcock v.
State, 578 So. 2d 685 (Fla. 1990); Tompkins[ v. State,
502 So. 2d 415 (Fla. 1986), cert. denied, 483 U. S. 1033
(1987)]; Doyle[ v. State, 460 So. 2d 353 (Fla. 1984)].-
Id., at 604.
  Sochor petitioned for a writ of certiorari, raising four
questions.  We granted review limited to the following two:
(1) -Did the application of Florida's [heinousness factor]
violate the Eighth and Fourteenth Amendments?- and (2)
-Did the Florida Supreme Court's review of petitioner's
death sentence violate the Eighth and Fourteenth Amend-
ments where that court upheld the sentence even though

the trial court had instructed the jury on, and had applied,
an improper aggravating circumstance, [in that] the Florida
Supreme Court did not reweigh the evidence or conduct a
harmless error analysis as to the effect of improper use of
the circumstance on the jury's penalty verdict?-  Pet. for
Cert. ii; see 502 U. S. ____ (1991).
                           II
  In a weighing State like Florida, there is Eighth Amend-
ment error when the sentencer weighs an -invalid- aggra-
vating circumstance in reaching the ultimate decision to
impose a death sentence.  See Clemons v. Mississippi, 494
U. S. 738, 752 (1990).  Employing an invalid aggravating
factor in the weighing process -creates the possibility . . . of
randomness,- Stringer v. Black, 503 U. S. ____, ____ (1992)
(slip op., at 12), by placing a -thumb [on] death's side of the
scale,- id., at ____ (slip op., at 8), thus -creat[ing] the risk
[of] treat[ing] the defendant as more deserving of the death
penalty,- id., at ____ (slip op., at 12).  Even when other
valid aggravating factors exist as well, merely affirming a
sentence reached by weighing an invalid aggravating factor
deprives a defendant of -the individualized treatment that
would result from actual reweighing of the mix of mitigat-
ing factors and aggravating circumstances.-  Clemons,
supra, at 752 (citing Lockett v. Ohio, 438 U. S. 586 (1978),
and Eddings v. Oklahoma, 455 U. S. 104 (1982)); see Parker
v. Dugger, 498 U. S. ____, ____ (1991) (slip op., at 11).
While federal law does not require the state appellate court
to remand for resentencing, it must, short of remand, either
itself reweigh without the invalid aggravating factor or
determine that weighing the invalid factor was harmless
error.  Id., at ____ (slip op., at 10).
                            A
  Florida's capital sentencing statute allows application of
the heinousness factor if -[t]he capital felony was especially
heinous, atrocious, or cruel.-  Fla. Stat. 921.141(5)(h)
(1991).  Sochor first argues that the jury instruction on the
heinousness factor was invalid in that the statutory
definition is unconstitutionally vague, see Maynard v.

Cartwright, 486 U. S. 356 (1988); Godfrey v. Georgia, 446
U. S. 420 (1980), and the instruction failed to narrow the
meaning enough to cure the defect.  This error goes to the
ultimate sentence, Sochor claims, because a Florida jury is
-the sentencer- for Clemons purposes, or at the least one of
-the sentencer's- constituent elements.  This is so because
the trial judge does not render wholly independent judg-
ment, but must accord deference to the jury's recommenda-
tion.  See Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)
(life verdict); Grossman v. State, 525 So. 2d 833, 839, n. 1
(Fla. 1988) (death verdict), cert. denied, 489 U. S. 1071
(1989).  Hence, the argument runs, error at the jury stage
taints a death sentence, even if the trial judge's decision is
otherwise error free.  Cf. Baldwin v. Alabama, 472 U. S.
372, 382 (1985).  While Sochor concedes that the general
advisory jury verdict does not reveal whether the jury did
find and weigh the heinousness factor, he seems to argue
that the possibility that the jury weighed an invalid factor
is enough to require cure.
  This argument faces a hurdle, however, in the rule that
this Court lacks jurisdiction to review a state court's
resolution of an issue of federal law if the state court's
decision rests on an adequate and independent state
ground, see Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945),
as it will if the state court's opinion -indicates clearly and
expressly- that the state ground is an alternative holding,
see Michigan v. Long, 463 U. S. 1032, 1041 (1983); see also
Harris v. Reed, 489 U. S. 255, 264, n. 10 (1989); Fox Film
Corp. v. Muller, 296 U. S. 207, 210 (1935).
  The Supreme Court of Florida said this about petitioner's
claim that the trial judge's instruction on the -heinousness-
factor was unconstitutional:
      -Sochor's next claim, regarding alleged errors in the
penalty jury instructions, likewise must fail.  None of
the complained-of jury instructions were objected to at
trial, and, thus, they are not preserved for appeal.
Vaught v. State, 410 So. 2d 147 (Fla. 1982).  In any
event, Sochor's claims here have no merit.10
      ``10. . . . .  We reject without discussion Sochor's . . .
claims . . . that the instructions as to the aggravating
factors of heinous, atrocious, or cruel and cold, calculat-
ed, and premeditated were improper . . . .-  580 So. 2d,
at 602-603, and n. 10.
The quoted passage indicates with requisite clarity that the
rejection of Sochor's claim was based on the alternative
state ground that the claim was -not preserved for appeal,-
and Sochor has said nothing in this Court to persuade us
that this state ground is either not adequate or not inde-
pendent.  Hence, we hold ourselves to be without authority
to address Sochor's claim based on the jury instruction
about the heinousness factor.
                            B
  Sochor maintains that the same Eighth Amendment
violation occurred again when the trial judge, who both
parties agree is at least a constituent part of -the sentenc-
er,- weighed the heinousness factor himself.  To be sure,
Sochor acknowledges the rule in Walton v. Arizona, 497
U. S. ____ (1990), where we held it was no error for a trial
judge to weigh an aggravating factor defined by statute
with impermissible vagueness, when the State Supreme
Court had construed the statutory language narrowly in a
prior case.  Id., at ____ (slip op., at 11-12).  We presumed
that the trial judge had been familiar with the authoritative
construction, which gave significant guidance.  Ibid.  Sochor
nonetheless argues that Walton is no help to the State,
because Florida's heinousness factor has not been subjected
to the limitation of a narrow construction from the State
Supreme Court.
  In State v. Dixon, 283 So. 2d 1 (1973), cert. denied, 416
U. S. 943 (1974), the Supreme Court of Florida construed
the statutory definition of the heinousness factor:
-It is our interpretation that heinous means extremely
wicked or shockingly evil; that atrocious means outra-
geously wicked and vile; and, that cruel means de-
signed to inflict a high degree of pain with utter
indifference to, or even enjoyment of, the suffering of
others.  What is intended to be included are those
capital crimes where the actual commission of the
capital felony was accompanied by such additional acts
as to set the crime apart from the norm of capital
felonies - the conscienceless or pitiless crime which is
unnecessarily torturous to the victim.-  283 So. 2d, at 9.
Understanding the factor, as defined in Dixon, to apply only
to a -conscienceless or pitiless crime which is unnecessarily
torturous to the victim,- we held in Proffitt v. Florida, 428
U. S. 242 (1976), that the sentencer had adequate guidance.
See id., at 255-256 (opinion of Stewart, Powell, and
Stevens, JJ.).
  Sochor contends, however, that the State Supreme
Court's post-Proffitt cases have not adhered to Dixon's
limitation as stated in Proffitt, but instead evince inconsis-
tent and overbroad constructions that leave a trial court
without sufficient guidance.  And we may well agree with
him that the Supreme Court of Florida has not confined its
discussions on the matter to the Dixon language we
approved in Proffitt, but has on occasion continued to
invoke the entire Dixon statement quoted above, perhaps
thinking that Proffitt approved it all.  See, e.g., Porter v.
State, 564 So. 2d 1060 (Fla. 1990), cert. denied, 498 U. S.
____ (1991); Cherry v. State, 544 So. 2d 184, 187 (Fla. 1989),
cert. denied, 494 U. S. 1090 (1990); Lucas v. State, 376 So.
2d 1149, 1153 (Fla. 1979).
  But however much that may be troubling in the abstract,
it need not trouble us here, for our review of Florida law
indicates that the State Supreme Court has consistently
held that heinousness is properly found if the defendant

strangled a conscious victim.  See Hitchcock v. State, 578
So. 2d 685, 692-693 (Fla. 1990), cert. denied 502 U. S. ___
(1991); Holton v. State, 573 So. 2d 284, 292 (Fla. 1990);
Tompkins v. State, 502 So. 2d 415, 421 (Fla. 1986); Johnson
v. State, 465 So. 2d 499, 507 (Fla.), cert. denied, 474 U. S.
865 (1985); Adams v. State, 412 So. 2d 850 (Fla.), cert.
denied, 459 U. S. 882 (1982).  Cf. Rhodes v. State, 547 So.
2d 1201, 1208 (Fla. 1989) (strangulation of semiconscious
victim not heinous); Herzog v. State, 439 So. 2d 1372 (Fla.
1983) (same).  We must presume the trial judge to have
been familiar with this body of case law, see Walton, supra,
at ____ (slip op., at 12), which, at a minimum, gave the trial
judge -[some] guidance,- ibid.  Since the Eighth Amend-
ment requires no more, we infer no error merely from the
fact that the trial judge weighed the heinousness factor.
While Sochor responds that the State Supreme Court's
interpretation of the heinousness factor has left Florida
trial judges without sufficient guidance in other factual
situations, we fail to see how that supports the conclusion
that the trial judge was without sufficient guidance in the
case at hand.  See generally Maynard v. Cartwright, 486
U. S., at 361-364.
                           III
  Sochor also claims that when -the sentencer- weighed the
coldness factor there was Eighth Amendment error that
went uncorrected in the State Supreme Court.
                            A
  First, Sochor complains of consideration of the coldness
factor by the jury, the first step in his argument being that
the coldness factor was -invalid- in that it was unsupported
by the evidence; the second step, that the jury in the
instant case -weighed- the coldness factor; and the third
and last step, that in Florida the jury is at least a constitu-
ent part of -the sentencer- for Clemons purposes.  The
argument fails, however, for the second step is fatally
flawed.  Because the jury in Florida does not reveal the
aggravating factors on which it relies, we cannot know
whether this jury actually relied on the coldness factor. If
it did not, there was no Eighth Amendment violation.
Thus, Sochor implicitly suggests that, if the jury was
allowed to rely on any of two or more independent grounds,
one of which is infirm, we should presume that the result-
ing general verdict rested on the infirm ground and must be
set aside.  See Mills v. Maryland, 486 U. S. 367, 376-377
(1988); cf. Stromberg v. California, 283 U. S. 359, 368
(1931).  Just this Term, however, we held it was no viola-
tion of due process that a trial court instructed a jury on
two different legal theories, one supported by the evidence,
the other not.  See Griffin v. United States, 502 U. S. ____
(1991).  We reasoned that although a jury is unlikely to
disregard a theory flawed in law, it is indeed likely to
disregard an option simply unsupported by evidence.  Id.,
at ____ (slip op., at 13).  We see no occasion for different
reasoning here, and accordingly decline to presume jury
error.
                            B
  Sochor next complains that Eighth Amendment error in
the trial judge's weighing of the coldness factor was left
uncured by the State Supreme Court.
                            1
  We can start from some points of agreement.  The parties
agree that, in Florida, the trial judge is at least a constitu-
ent part of -the sentencer- for Clemons purposes, and there
is, of course, no doubt that the trial judge -weighed- the
coldness factor, as he said in his sentencing order.  Nor is
there any question that the coldness factor was -invalid- for
Clemons purposes, since Parker applied the Clemons rule
where a trial judge had weighed two aggravating circum-
stances that were invalid in the sense that the Supreme
Court of Florida had found them to be unsupported by the
evidence.  See 498 U. S., at ____ (slip op., at 2).  It follows
that Eighth Amendment error did occur when the trial
judge weighed the coldness factor in the instant case.  What
is in issue is the adequacy of the State Supreme Court's
effort to cure the error under the rule announced in

Clemons, that a sentence so tainted requires appellate
reweighing or review for harmlessness.
                            2
  We noted in Parker that the Supreme Court of Florida
will generally not reweigh evidence independently, id., at
____ (slip op., at 10) (citing Hudson v. State, 538 So. 2d 829,
831 (Fla.) (per curiam), cert. denied, 493 U. S. 875 (1989);
Brown v. Wainwright, 392 So. 2d 1327, 1331-1332 (Fla.
1981) (per curiam)), and the parties agree that, to this
extent at least, our perception of Florida law was correct.
The State argues, nonetheless, that, in this case, the State
Supreme Court did support the death verdict adequately by
performing harmless-error analysis.  It relies on the excerpt
from the state court's opinion quoted above, and particular-
ly on the second through fourth sentences, as -declar[ing] a
belief that- the trial judge's weighing of the coldness factor
-was harmless beyond a reasonable doubt- in that it -did
not contribute to the [sentence] obtained.-  Chapman v.
California, 386 U. S. 18, 24 (1967).  This, however, is far
from apparent.  Not only does the State Supreme Court's
opinion fail so much as to mention -harmless error,- see
Yates v. Evatt, 500 U. S. ____, ____ (1991) (slip op., at
12-13), but the quoted sentences numbered one and five
expressly refer to the quite different enquiry whether
Sochor's sentence was proportional.
  The State tries to counter this deficiency by arguing that
the four cases cited following the fourth sentence of the
quoted passage were harmless-error cases, citation to which
was a shorthand signal that the court had reviewed this
record for harmless error as well.  But the citations come
up short.  Only one of the four cases contains language
giving an explicit indication that the State Supreme Court
had performed harmless-error analysis.  See Holton v.
State, 573 So. 2d 284, 293 (Fla. 1990) (-We find the error
was harmless beyond a reasonable doubt-).  The other three
simply do not, and the result is ambiguity.
  Although we do not mean here to require a particular
formulaic indication by state courts before their review for
harmless federal error will pass federal scrutiny, a plain
statement that the judgment survives on such an enquiry
is clearly preferable to allusions by citation.  In any event,
when the citations stop as far short of clarity as these do,
they cannot even arguably substitute for explicit language
signifying that the State Supreme Court reviewed for harm-
less error.
                           IV
  In sum, Eighth Amendment error occurred when the trial
judge weighed the coldness factor.  Since the Supreme
Court of Florida did not explain or even -declare a belief
that- this error -was harmless beyond a reasonable doubt-
in that -it did not contribute to the [sentence] obtained,-
Chapman, supra, at 24, the error cannot be taken as cured
by the State Supreme Court's consideration of the case.  It
follows that Sochor's sentence cannot stand on the existing
record of appellate review.  We vacate the judgment of the
Supreme Court of Florida, and remand the case for proceed-
ings not inconsistent with this opinion.

                                      It is so ordered.



SUPREME COURT OF THE UNITED STATES
--------
No. 91-5843
--------
DENNIS SOCHOR, PETITIONER v. FLORIDA
on writ of certiorari to the supreme court of
florida
[June 8, 1992]

  Justice O'Connor, concurring.
  I join the Court's opinion but write separately to set forth
my understanding that the Court does not hold that an
appellate court can fulfill its obligations of meaningful
review by simply reciting the formula for harmless error.
In Chapman v. California, 386 U. S. 18 (1967), we held that
before a federal constitutional error can be held harmless,
the reviewing court must find -beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained.-  Id., at 24.  This is a justifiably high
standard, and while it can be met without uttering the
magic words -harmless error,- see ante, at 11-12, the
reverse is not true.  An appellate court's bald assertion that
an error of constitutional dimensions was -harmless- cannot
substitute for a principled explanation of how the court
reached that conclusion.  In Clemons v. Mississippi, 494
U. S. 738 (1990), for example, we did not hesitate to
remand a case for -a detailed explanation based on the
record- when the lower court failed to undertake an explicit
analysis supporting its -cryptic,- one-sentence conclusion of
harmless error.  Id., at 753.  I agree with the Court that the
Florida Supreme Court's discussion of the proportionality of
petitioner's sentence is not an acceptable substitute for
harmless error analysis, see ante, at 11, and I do not
understand the Court to say that the mere addition of the
words -harmless error- would have sufficed to satisfy the
dictates of Clemons.



SUPREME COURT OF THE UNITED STATES
--------
No. 91-5843
--------
DENNIS SOCHOR, PETITIONER v. FLORIDA
on writ of certiorari to the supreme court of
florida
[June 1, 1992]

  The Chief Justice, with whom Justice White and
Justice Thomas join, concurring in part and dissenting in
part.
  I join in all that the Court has to say in rejecting Sochor's
claim that the application of Florida's -heinousness- factor
in this case violated his constitutional rights.  I also agree
with the majority that Eighth Amendment error occurred
when the trial judge weighed the invalid -coldness- factor
in imposing Sochor's death sentence.  Accordingly, I join
Parts I, II, III-A, and III-B(1) of the Court's opinion.  I
dissent from Parts III-B(2) and IV of the opinion, however,
for I believe that the Supreme Court of Florida cured this
sentencing error by finding it harmless.  I would thus
affirm the judgment below and uphold the sentence.
  When a reviewing court invalidates one or more of the
aggravating factors upon which the sentencer relied in
imposing a death sentence, the court may uphold the
sentence by reweighing the remaining evidence or by
conducting harmless-error analysis.  Clemons v. Mississippi,
494 U. S. 738 (1990).  As the majority observes, the
Supreme Court of Florida does not in practice indepen-
dently reweigh aggravating and mitigating evidence, and it
did not do so in this case.  Ante, at 14.  In order to sustain
Sochor's sentence, the court thus had to find any error
harmless.  In other words, it had to find beyond a reason-
able doubt that the trial judge would still have imposed the
death sentence if he had not considered the -coldness-
factor when performing the weighing function required by
Florida law.  Clemons v. Mississippi, supra, at 753; Chap-
man v. California, 386 U. S. 18, 24 (1967).  It seems clear
to me that the court reached this conclusion, and that the
conclusion is certainly justified by the facts of this case.
  After finding that the trial judge erred in relying on the
coldness factor in determining Sochor's sentence, the
Supreme Court of Florida stated:
-The trial court carefully weighed the aggravating
factors against the lack of any mitigating factors and
concluded that death was warranted.  Even after
removing the aggravating factor of cold, calculated, and
premeditated there still remain three aggravating
factors to be weighed against no mitigating circum-
stances.  Striking one aggravating factor when there
are no mitigating circumstances does not necessarily
require resentencing.  Robinson v. State, 574 So. 2d 108
(Fla. 1991); Holton v. State, 573 So. 2d 284 (Fla. 1990);
James v. State, 453 So. 2d 786 (Fla.), cert. denied, 469
U. S. 1098 . . . (1984); Francois v. State, 407 So. 2d 885
(Fla. 1981), cert. denied, 458 U. S. 1122 . . . (1982).-
580 So. 2d 595, 604 (1991).
  The Court now holds that this passage fails to indicate
that the error in this case was viewed as harmless.  It is
true that the passage does not mention the words -harmless
error.-  But we have never held that a court must necessari-
ly recite those words in determining whether an error had
an effect on a certain result.  In deciding whether the
Supreme Court of Florida conducted adequate harmless-
error analysis in this case, our focus should not be solely on
the particular words and phrases it used to convey its
thoughts.  Whatever words it used, if they show that it
concluded beyond a reasonable doubt that elimination of the
-coldness- aggravating factor would have made no differ-
ence to Sochor's sentence, then it conducted adequate
harmless error analysis.  See Parker v. Dugger, 498 U. S.
___, ___ (1991) (slip op., at 10-11).
  I am convinced by the passage quoted above that the
Supreme Court of Florida believed, beyond a reasonable
doubt, that the elimination of the -coldness- factor would
have made no difference at all in this case.  A review of the
aggravating and mitigating evidence presented in this case
demonstrates why.  In making his sentencing determina-
tion, the trial judge found four aggravating circumstances,
including the -coldness- aggravator.  He found absolutely no
mitigating evidence.  After weighing the four aggravating
circumstances against zero mitigating circumstances, the
trial judge imposed the death penalty.  The Supreme Court
of Florida later found the -coldness- aggravating circum-
stance invalid.  It observed, however, that three valid
aggravators were left to be balanced against the complete
lack of mitigating evidence.  On that basis, the court
concluded that resentencing was unnecessary.  After
reaching that conclusion, the court cited four cases in which
it had invalidated aggravating factors but had upheld the
death sentences, having found that the inclusion of those
aggravators made no difference to the weighing process.
One of the cases cited in fact made explicit mention of
harmless-error analysis.  Holton v. State, 573 So. 2d 284,
293 (Fla. 1990) (-Under the circumstances of this case, we
cannot say there is any reasonable likelihood the trial court
would have concluded that the three valid aggravating
circumstances were outweighed by the mitigating factors.
We find the error was harmless beyond a reasonable
doubt-) (citation omitted).  See supra, at 2.
  In my mind, it is no stretch to conclude that the court
saw this case for what it is - a paradigmatic example of
the situation where the invalidation of an aggravator makes
absolutely no difference in the sentencing calculus.  We
have previously observed that the invalidation of an
aggravating circumstance results in the removal of a
-thumb . . . from death's side of the scale.-  Stringer v.
Black, 503 U. S. ___, ___ (1992) (slip op., at 8).  Precisely for
this reason, we require appellate courts to either reweigh
the evidence or perform harmless-error analysis if they seek
to affirm a death sentence after invalidating an aggravator.
In a case such as this, however, where there is not so much
as a thumbnail on the scale in favor of mitigation, I would
not require appellate courts to adhere to any particular
form of words to demonstrate that which is evident.  If the
trial judge in this case had eliminated the -coldness-
aggravator from the weighing process, and had balanced the
three valid aggravators against the complete absence of
mitigating evidence, the absent mitigating evidence would
still have failed to outweigh the aggravating evidence, and
the sentence would still have been death.  Although it did
so cursorily, I am convinced that the Supreme Court of
Florida found the inclusion of the invalid -coldness- factor
harmless beyond a reasonable doubt.
  It seems that the omission of the words -harmless error-
from the opinion below is the root of this Court's dissatisfac-
tion with it.  In all likelihood, the Supreme Court of Florida
will reimpose Sochor's death sentence on remand, perhaps
by appending a sentence using the talismanic phrase
-harmless error.-  Form will then correspond to substance,
but this marginal benefit does not justify our effort to
supervise the opinion-writing of state courts.  I would
therefore affirm the judgment below.




SUPREME COURT OF THE UNITED STATES
--------
No. 91-5843
--------
DENNIS SOCHOR, PETITIONER v. FLORIDA
on writ of certiorari to the supreme court of
florida
[June 8, 1992]

  Justice Stevens, with whom Justice Blackmun joins,
concurring in part and dissenting in part.
  We granted certiorari to consider two questions.  The
Court answers the first question in Parts III-B and IV of its
opinion, see ante, at 10-12, which I join.  I do not, however,
agree with the Court's treatment of the plain error that
occurred when the trial judge instructed the jury at the
penalty phase of the trial.  See ante, at 4-10.  Florida
argues that this error was harmless because the death
sentence was imposed by the judge rather than the jury.
The Court today does not address this argument because it
concludes that petitioner waived the error by failing to
object to the instruction.  I disagree with this Court in its
effort to avoid the issue and with the Florida Supreme
Court in its appraisal of the error.
                            I
  There is no dispute that the instruction prescribing the
so-called heinous, atrocious or cruel aggravating circum-
stance (or heinousness factor, according to the Court's
nomenclature) was unconstitutionally vague under our
decision in Maynard v. Cartwright, 486 U. S. 356 (1988).
In Cartwright, the Court explained that -[t]o say that
something is `especially heinous' merely suggests that the
individual jurors should determine that the murder is more
than just `heinous,' whatever that means, and an ordinary
person could honestly believe that every unjustified,
intentional taking of human life is `especially heinous.'-
Id., at 364 (citation omitted).  Although a state court may
adopt a limiting construction of a vague capital sentencing
aggravating circumstance to give meaningful guidance to
the sentencer, see id., at 360, 365; Walton v. Arizona, 497
U. S. 639, 653 (1990); Lewis v. Jeffers, 497 U. S. 764,
778-779 (1990); Godfrey v. Georgia, 446 U. S. 420, 428
(1980) (plurality opinion), or a state appellate court might
apply a limiting definition of the aggravating circumstance
to the facts presented, see Cartwright, 486 U. S., at 364;
Walton, 497 U. S., at 653; Jeffers, 497 U. S., at 778-779;
Godfrey, 446 U. S., at 429, the Florida Supreme Court has
failed to do so here.  In Proffitt v. Florida, 428 U. S. 242,
255-256 (1976), this Court approved the limiting construc-
tion adopted by the Florida Supreme Court for the heinous-
ness factor; however, the guidance given in Dixon v. State,
283 So.2d 1 (Fla. 1973) was certainly not provided in the
bare bones of the instruction given by the trial court in this
case.  See n. 2, supra.
                           II
  Petitioner's failure to object to the instruction at trial did
not deprive the Florida Supreme Court or this Court of the
power to correct the obvious constitutional error.  First,
petitioner did object to the vagueness of this aggravating
circumstance in a Motion To Declare Section 921.141,
Florida Statutes Unconstitutional Re:  Aggravating and
Mitigating Circumstances at the start of trial, see App. 8,
10; however, that motion was denied.  See 1 Tr. 9.
Second, the Florida Supreme Court, though noting that
petitioner had failed to make a contemporaneous objection
to the instruction at the time of trial, nevertheless went on
to reach the merits of petitioner's claim.  See 580 So.2d 595,
603 (1991).  Thus, the Florida Supreme Court, far from
providing us with a plain statement that petitioner's claim
was procedurally barred, see Michigan v. Long, 463 U. S.
1032, 1042 (1983), has merely said that the claim was -not
preserved for appeal,- 580 So.2d, at 602, and has given even
further indication that petitioner's claim was not procedur-
ally barred by proceeding to the merits, albeit in the
alternative.  Third, and most important, the State Court
may review a fundamental error despite a party's failure to
make a contemporaneous objection in the trial court, and
it unquestionably has the power to review this error even
though the error may not have been properly preserved for
appeal.  As the Florida Supreme Court explained, -[f]un-
damental error has been defined as `error which goes to the
foundation of the case or goes to the merits of the cause of
action,'- and although it is to be applied -`very guardedly,'-
it nevertheless is to be applied in those -rare cases where
a jurisdictional error appears or where the interests of
justice present a compelling demand for its application.-
Ray v. State, 403 So.2d 956, 960 (1981) (citations omitted).
Presumably because the state court reviews for fundamen-
tal error, but did not find such error here, the State did not
oppose the petition for certiorari by arguing procedural
default.  See Brief in Opposition 11 (State argued heinous-
ness factor was not unconstitutionally vague).  Under these
circumstances, the State has waived any possible procedur-
al objection to our consideration of the erroneous jury
instruction, and this Court, contrary to its protestation, is
not -without authority- to address petitioner's claim.  Ante,
at 6.
                           III
  We should reject unequivocally Florida's submission that
erroneous jury instructions at the penalty phase of a capital
case are harmless because the trial judge is the actual
sentencer and the jury's role is purely advisory.  That
submission is unsound as a matter of law, see, e.g., Riley v.
Wainwright, 517 So.2d 656, 659 (Fla. 1987); Hall v. State,
541 So.2d 1125, 1129 (Fla. 1989), and as a matter of fact.
  As a matter of law, the jury plays an essential role in the
Florida sentencing scheme.  Under Tedder v. State, 322
So.2d 908 (Fla. 1975), and its progeny, a jury's recom-
mendation must be given -great weight.-  Id., at 910.  The
Florida Supreme Court explained that a jury recommenda-
tion of a life sentence can be overturned only if -the facts
suggesting a sentence of death [are] so clear and convincing
that virtually no reasonable person could differ.-  Ibid.
  Similarly, a jury's recommendation of a death sentence
must also be given great weight.  For example, in Stone
v. State, 378 So.2d 765 (Fla.), cert. denied, 449 U. S. 986
(1980), the Florida Supreme Court discussed a challenge to
a death sentence imposed after a jury had recommended a
sentence of death.  The petitioner had based his challenge
on a similar case, Swan v. State, 322 So.2d 485 (Fla. 1975),
in which the court had reversed the death sentence.  In
affirming Stone's sentence, however, the court pointed out
that the critical difference between Stone's case and Swan's
case was that -Swan's jury recommended mercy while
Stone's recommended death and the jury recommendation
is entitled to great weight.  Tedder v. State, 322 So.2d 908
(Fla. 1975).-  Stone, 378 So.2d, at 772.
  As a matter of fact, the jury sentence is the sentence that
is usually imposed by the Florida Supreme Court.  The
State has attached an appendix to its brief, see App. to
Brief for Respondent A1-A70, setting forth data concerning
469 capital cases that were reviewed by the Florida
Supreme Court between 1980 and 1991.  In 341 of those
cases (73%), the jury recommended the death penalty; in
none of those cases did the trial judge impose a lesser
sentence.  In 91 cases (19%), the jury recommended a life
sentence; in all but one of those cases, the trial judge
overrode the jury's recommended life sentence and imposed
a death sentence.  In 69 of those overrides (77%), however,
the Florida Supreme Court vacated the trial judge's
sentence and either imposed a life sentence itself or
remanded for a new sentencing hearing.
  Two conclusions are evident.  First, when the jury
recommends a death sentence, the trial judge will almost
certainly impose that sentence.  Second, when the jury
recommends a life sentence, although overrides have been
sustained occasionally, the Florida Supreme Court will
normally uphold the jury rather than the judge.  It is
therefore clear that in practice, erroneous instructions to
the jury at the sentencing phase of the trial may make the
difference between life or death.
  When a jury has been mistakenly instructed on the
heinous, atrocious, or cruel aggravating circumstance, the
Florida Supreme Court, acknowledging the important role
that the jury plays in the sentencing scheme, has held that
the error was reversible.  For example, in Jones v. State,
569 So.2d 1234 (Fla. 1990), in which the jury was instruct-
ed on the heinousness factor, but the body had been
sexually abused after death, and the death had occurred
quickly as the result of a gunshot wound, the Florida
Supreme Court concluded that the heinousness factor was
inapplicable and that its inclusion in the instructions
constituted reversible error.  Similarly, in Omelus v. State,
584 So.2d 563 (Fla. 1991), when the trial court had instruct-
ed the jury on the heinousness factor even though the
defendant had contracted with a third party to perform the
killing, and had no knowledge of how the murder was
accomplished, the Florida Supreme Court remanded the
case for resentencing.  Thus, the Florida Supreme Court
recognized that when the jury's deliberative process is
infected by consideration of an inapplicable aggravating
factor, the sentence must be vacated unless the error is
harmless beyond a reasonable doubt.  Similarly, the
court has recognized that when the jury is given an
instruction that is unconstitutionally vague, the jury's
deliberative process is also tainted, and a remand is
appropriate so that the jury can reach a sentence that is not
influenced by the unconstitutional factor unless the error is
harmless beyond a reasonable doubt.
  The harmless error inquiry to be conducted by the Florida
Supreme Court on remand should, therefore, encompass the
erroneous jury instruction on the heinousness factor and
the error in submitting an instruction on the cold, calculat-
ed, and premeditated aggravating circumstance to the jury
when the evidence did not support such an instruction, as
well as the error committed by the trial judge in relying on
that factor.
  For the reasons given above, I concur in Parts I, III-B,
and IV, and respectfully disagree with Parts II-A, II-B, and
III-A.



SUPREME COURT OF THE UNITED STATES
--------
No. 91-5843
--------
DENNIS SOCHOR, PETITIONER v. FLORIDA
on writ of certiorari to the supreme court of
florida
[June 8, 1992]

  Justice Scalia, concurring in part and dissenting in
part.
  I join the Court's opinion insofar as it rejects petitioner's
challenge to the heinous, atrocious, and cruel aggravating
factor.  I dissent, however, from its holding that the death
sentence in this case is unconstitutional because the Florida
Supreme Court failed to find -harmless error- after having
invalidated the trial judge's -coldness- finding.
  Even without that finding, three unquestionably valid
aggravating factors remained, so that the death sentence
complied with the so-called -narrowing- requirement
imposed by the line of cases commencing with Furman v.
Georgia, 408 U. S. 238 (1972).  The constitutional -error-
whose harmlessness is at issue, then, concerns only the
inclusion of the -coldness- factor in the weighing of the
aggravating factors against the mitigating evidence peti-
tioner offered.  It has been my view that the Eighth
Amendment does not require any consideration of mitigat-
ing evidence, see Walton v. Arizona, 497 U. S. 639, --
(1990) (opinion concurring in part and concurring in
judgment)-a view I am increasingly confirmed in, as the
byzantine complexity of the death-penalty jurisprudence we
are annually accreting becomes more and more apparent.
Since the weighing here was in my view not constitutionally
required, any error in the doing of it raised no federal
question.  For that reason, I would affirm the death
sentence.
