CERTIORARI TO THE SUPREME COURT OF ALABAMA.
O'connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 94. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 95.
JUSTICE O'CONNOR delivered the opinion of the Court.
The question before the Court is whether the Double Jeopardy Clause of the Fifth Amendment bars Alabama from trying petitioner for the capital offense of murder during a kidnaping after Georgia has convicted him of murder based on the same homicide. In particular, this case presents the issue of the applicability of the dual sovereignty doctrine to successive prosecutions by two States.
In August 1981, petitioner, Larry Gene Heath, hired Charles Owens and Gregory Lumpkin to kill his wife, Rebecca Heath, who was then nine months pregnant, for a sum of $2,000. On the morning of August 31, 1981, petitioner left the Heath residence in Russell County, Alabama, to meet with Owens and Lumpkin in Georgia, just over the Alabama
border from the Heath home. Petitioner led them back to the Heath residence, gave them the keys to the Heaths' car and house, and left the premises in his girlfriend's truck. Owens and Lumpkin then kidnaped Rebecca Heath from her home. The Heath car, with Rebecca Heath's body inside, was later found on the side of a road in Troup County, Georgia. The cause of death was a gunshot wound in the head. The estimated time of death and the distance from the Heath residence to the spot where Rebecca Heath's body was found are consistent with the theory that the murder took place in Georgia, and respondent does not contend otherwise.
Georgia and Alabama authorities pursued dual investigations in which they cooperated to some extent. On September 4, 1981, petitioner was arrested by Georgia authorities. Petitioner waived his Miranda rights and gave a full confession admitting that he had arranged his wife's kidnaping and murder. In November 1981, the grand jury of Troup County, Georgia, indicted petitioner for the offense of "malice" murder under Ga. Code Ann. § 16-5-1 (1984).*fn1 Georgia then served petitioner with notice of its intention to seek the death penalty, citing as the aggravating circumstance the fact that the murder was "caused and directed" by petitioner. Record 742. See Ga. Code Ann. § 17-10-30(b)(6) (1982). On February 10, 1982, petitioner pleaded guilty to the Georgia murder charge in exchange for a sentence of life imprisonment, which he understood could involve his serving as few as seven years in prison. See Record 495.
On May 5, 1982, the grand jury of Russell County, Alabama, returned an indictment against petitioner for the capital
offense of murder during a kidnaping.*fn2 See Ala. Code § 13A-5-40(a)(1) (1982). Before trial on this indictment, petitioner entered pleas of autrefois convict and former jeopardy under the Alabama and United States Constitutions, arguing that his conviction and sentence in Georgia barred his prosecution in Alabama for the same conduct. Petitioner also entered a plea contesting the jurisdiction of the Alabama court on the ground that the crime had occurred in Georgia.
After a hearing, the trial court rejected petitioner's double jeopardy claims. It assumed, arguendo, that the two prosecutions could not have been brought in succession by one State but held that double jeopardy did not bar successive prosecutions by two different States for the same act. See Record 776. The court postponed a ruling on petitioner's plea to jurisdiction until the close of the State's case in chief. See id., at 778.
At the close of the State's case, petitioner argued that Alabama did not have jurisdiction under state law because there had been no evidence of kidnaping and all the evidence showed that Rebecca Heath was killed in Georgia. The State responded that a kidnaping had been proved, and that under Ala. Code § 15-2-3 (1982), if a crime commences in Alabama it may be punished in Alabama regardless of where the crime is consummated. The court rejected both petitioner's jurisdictional plea and his renewed double jeopardy claims. See Record 590.
On January 12, 1983, the Alabama jury convicted petitioner of murder during a kidnaping in the first degree. After a sentencing hearing, the jury recommended the death
penalty. Pursuant to Alabama law, a second sentencing hearing was held before the trial judge. The judge accepted the jury's recommendation, finding that the sole aggravating factor, that the capital offense was "committed while the defendant was engaged in the commission of a kidnapping," outweighed the sole mitigating factor, that the "defendant was convicted of the murder of Rebecca Heath in the Superior Court of Troup County, Georgia, . . . and received a sentence of life imprisonment in that court." Id., at 718-720. See Ala. Code §§ 13A-5-49(4), 13A-5-50 (1982).
On appeal, the Alabama Court of Criminal Appeals rejected petitioner's pleas of autrefois convict and former jeopardy under the Alabama and United States Constitutions and affirmed his conviction. 455 So. 2d 898 (1983). Petitioner then filed a petition for writ of certiorari with the Alabama Supreme Court, stating the sole issue to be "whether or not the prosecution in the State of Alabama constituted double jeopardy in violation of the 5th Amendment of the United States Constitution." App. 92. The court granted his petition, and unanimously affirmed his conviction. Ex parte Heath, 455 So. 2d 905 (1984).
The Alabama Supreme Court noted that "[prosecutions] under the laws of separate sovereigns do not improperly subject an accused twice to prosecutions for the same offense," citing this Court's cases applying the dual sovereignty doctrine. Id., at 906. The court acknowledged that this Court has not considered the applicability of the dual sovereignty doctrine to successive prosecutions by different States. It reasoned, however, that "[if], for double jeopardy purposes, Alabama is considered to be a sovereign entity vis-a-vis the federal government then surely it is a sovereign entity vis-a-vis the State of Georgia." Ibid.
Petitioner sought a writ of certiorari from this Court, raising double jeopardy claims and claims based on Alabama's exercise of jurisdiction. No due process objections were asserted. We granted certiorari limited to the question
whether petitioner's Alabama conviction was barred by this Court's decision in Brown v. Ohio, 432 U.S. 161 (1977), and requested the parties to address the question of the applicability of the dual sovereignty doctrine to successive prosecutions by two States. 470 U.S. 1026 (1985). For the reasons explained below, we affirm the judgment of the Alabama Supreme Court.
Despite the fact that this Court did not grant certiorari on the constitutional objection to Alabama's exercise of jurisdiction, petitioner has continued to argue in this Court his jurisdictional claim. See Tr. of Oral Arg. 11-22, 29-31; Brief for Petitioner 15. We decline to decide the issue because petitioner did not claim lack of jurisdiction in his petition to the Alabama Supreme Court and he raised the claim for the first time in his petition to this Court. Pet. for Cert. 4. Even if we were not jurisdictionally barred from considering claims not pressed or passed upon in the state court, as has sometimes been stated, see, e. g., State Farm Mutual Automobile Ins. Co. v. Duel, 324 U.S. 154, 160 (1945); Crowell v. Randell, 10 Pet. 368, 392 (1836), the longstanding rule that this Court will not consider such claims creates, at the least, a weighty presumption against review. See, e. g., Illinois v. Gates, 462 U.S. 213, 218-222 (1983).
Successive prosecutions are barred by the Fifth Amendment only if the two offenses for which the defendant is prosecuted are the "same" for double jeopardy purposes. Respondent does not contravene petitioner's contention that the offenses of "murder during a kidnaping" and "malice murder," as construed by the courts of Alabama and Georgia respectively, may be considered greater and lesser offenses and, thus, the "same" offense under Brown v. Ohio, supra, absent operation of the dual sovereignty principle. See id., at 169; Illinois v. Vitale, 447 U.S. 410 (1980). We therefore assume, arguendo, that, had these offenses arisen under
the laws of one State and had petitioner been separately prosecuted for both offenses in that State, the second conviction would have ...