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HOPPER v. EVANS

decided: May 24, 1982.

HOPPER, CORRECTIONS COMMISSIONER, ET AL
v.
EVANS



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, Rehnquist, Stevens, and O'connor, JJ., joined. Brennan and Marshall, JJ., filed an opinion concurring in part and dissenting in part, post, p. 614.

Author: Burger

[ 456 U.S. Page 606]

 CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to determine whether, after invalidation of a state law which precluded instructions on lesser included offenses in capital cases, a new trial is required in a capital case in which the defendant's own evidence negates the possibility that such an instruction might have been warranted.

I

A

Shortly after respondent was released on parole from an Indiana prison in 1976, he and Wayne Ritter, who had been a fellow inmate, embarked on what respondent himself described as a cross-country crime "spree." App. 9. According to respondent's testimony, they committed about 30 armed robberies, 9 kidnappings, and 2 extortion schemes in seven different States during a 2-month period. Respondent testified that on January 5, 1977, he and Ritter entered a pawnshop in Mobile, Ala., intending to rob it. Ritter asked the pawnshop owner, Edward Nassar, to show him a gun. When Nassar handed the gun to Ritter, respondent pulled his own gun and announced that he intended to rob him. Nassar dropped to his hands and knees and crawled toward his office. Respondent then shot him in the back, killing him. Nassar's two daughters, aged seven and nine, were in the pawnshop at the time of the murder.

Respondent and Ritter were captured by the Federal Bureau of Investigation in Little Rock, Ark., on March 7, 1977. A gun, which was identified by ballistics tests as the weapon used to kill Nassar, was found in their motel room and the

[ 456 U.S. Page 607]

     gun Nassar showed Ritter at the pawnshop was found in their car. After being fully advised of his constitutional rights, respondent signed a detailed written confession on March 8, 1977, admitting that he shot Nassar in the back. He repeated and elaborated on his confession before a grand jury in Mobile on April 4, 1977. He told the grand jury that Nassar was not the only person he had ever killed, that he felt no remorse because of that murder, that he would kill again in similar circumstances, and that he intended to return to a life of crime if he was ever freed. Since he doubted that he ever would be freed, he told the grand jury that he wanted to be executed as soon as possible. The grand jury indicted him under Ala. Code § 13-11-2(a)(2) (1975), which makes "[robbery] or attempts thereof when the victim is intentionally killed by the defendant" a capital offense.

B

Under Alabama law, capital punishment may be imposed only after conviction by a jury. Prothro v. State, 370 So. 2d 740, 746-747 (Ala. Crim. App. 1979). The prosecution, therefore, declined to accept respondent's guilty plea. A psychiatrist, appointed by the court, concluded that respondent was competent to stand trial. Respondent and Ritter were tried together. The evidence against respondent included his confession to the Federal Bureau of Investigation, two eyewitnesses who identified him, and ballistic evidence matching the bullet that killed Nassar with respondent's gun.

Against his attorneys' advice, respondent testified in his own behalf. He told the jury he had shot Nassar, and informed it that he had "no intention whatsoever of ever reforming in any way" and would return to a life of crime if released. App. 38. Release from prison in the near future appeared unlikely since he was wanted for a number of crimes in different States as a result of the armed robbery spree. Respondent told the jury: "I would rather die by

[ 456 U.S. Page 608]

     electrocution than spend the rest of my life in the penitentiary. So, I'm asking very sincerely that you come back with a ...


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