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TUGGLEv.NETHERLAND, WARDEN 516 U.S. 10

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OCTOBER TERM, 1995

Syllabus

TUGGLEv.NETHERLAND, WARDEN

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-6016. Decided October 30, 1995

Petitioner was convicted of murder in Virginia state court. Mter the Commonwealth presented unrebutted psychiatric testimony of future dangerousness at his sentencing hearing, the jury found two statutory aggravating circumstances-"future dangerousness" and "vileness"and sentenced him to death. This Court vacated the State Supreme Court's judgment affirming the conviction and remanded for further consideration in light of the holding in Ake v. Oklahoma, 470 U. S. 68, that, when the prosecution presents psychiatric evidence of an indigent defendant's future dangerousness in a capital sentencing proceeding, due process requires the State to provide the defendant with the assistance of an independent psychiatrist. On remand, the State Supreme Court invalidated the future dangerousness aggravating factor, but found that the death sentence survived based on the vileness aggravator because, under Zant v. Stephens, 462 U. S. 862, a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is invalid. The Court of Appeals agreed with this analysis on federal habeas review, construing Zant as establishing a rule that in nonweighing States a death sentence may be upheld on the basis of one valid aggravating circumstance, regardless of the reasons for finding another aggravating factor invalid.

Held: The Court of Appeals' interpretation of the Zant holding is incorrect. Even after elimination of the invalid aggravator, the death sentence in Zant rested on firm ground. Two unimpeachable aggravating factors remained, and there was no claim that inadmissible evidence was before the jury during its sentencing deliberations or that the defendant had been precluded from adducing mitigating evidence. The record here does not provide comparable support for the death sentence. The Ake error prevented petitioner from developing his own evidence to rebut the Commonwealth's evidence and to enhance his defense in mitigation. As a result, the Commonwealth's psychiatric evidence went unchallenged, which may have unfairly increased its persuasiveness in the jury's eyes and affected its decision to impose death rather than life imprisonment. Zant supports the conclusion that one aggravator's invalidation does not necessarily require that a death sentence be setcralaw


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aside, not the quite different proposition that a valid aggravator's existence always excuses a constitutional error in the admission or exclusion of evidence. Cf. Johnson v. Mississippi, 486 U. S. 578, 590. This Court does not customarily address in the first instance whether harmlesserror analysis is applicable.

Certiorari granted; 57 F.3d 1356, vacated and remanded.

PER CURIAM.

In Zant v. Stephens, 462 U. S. 862 (1983), we held that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid. Id., at 886-888. We noted that our holding did not apply in States in which the jury is instructed to weigh aggravating circumstances against mitigating circumstances in determining whether to impose the death penalty. Id., at 874, n. 12, 890. In this case, the Virginia Supreme Court and the Court of Appeals for the Fourth Circuit construed Zant as establishing a rule that in nonweighing States a death sentence may be upheld on the basis of one valid aggravating circumstance, regardless of the reasons for which another aggravating factor may have been found to be invalid. Because this interpretation of our holding in Zant is incorrect, we now grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and vacate the judgment of the Court of Appeals.

I

Petitioner Tuggle was convicted of murder in Virginia state court. At his sentencing hearing, the Commonwealth presented unrebutted psychiatric testimony that petitioner demonstrated" 'a high probability of future dangerousness.' " Tuggle v. Commonwealth, 230 Va. 99, 107, 334 S. E. 2d 838, 844 (1985), cert. denied, Tuggle v. Virginia, 478 U. S. 1010 (1986). After deliberations, the jury found that the Commonwealth had established Virginia's two statutory aggravating circumstances, "future dangerousness" and "vileness";cralaw


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