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VOLUME 18 - CHAPTER 309
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Macro 309.13    Death Penalty

    Macro 13.1    Death Qualification Based On Killing By An Accomplice During Another Felony Must Be Narrow
    Macro 13.2    Death Eligibility Factor Must Not Be Overly Broad or Vague
    Macro 13.3    Full And Accurate Instruction On Elements Of Death Qualification And Prosecution's Burden
    Macro 13.4    Heightened Reliability Of Guilt Determination
    Macro 13.5    Fair And Reliable Sentencing Determination
    Macro 13.6    Individualized Sentencing
    Macro 13.7    Jury Must Accept Personal Responsibility For The Sentencing Decision
    Macro 13.8    Premature Deliberation As To Penalty
    Macro 13.9    The 8th Amendment Requires That The Jury Understand The Death Penalty Instructions
    Macro 13.10  Jury Consideration Of Extrinsic Evidence Or Properly Admitted Evidence For An Improper Purpose
    Macro 13.11  Jury Must Consider Mitigating Evidence
    Macro 13.12  A Mandatory Death Sentence Is Unconstitutional: The Jury Must Fairly Exercise Discretion
    Macro 13.13  Improper Aggravation

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    The death eligibility determination must rationally narrow the class of individuals who are death eligible for valid penological reason[s]. (Spaziano v. Florida (1984) 468 US 447, 460 n7 [104 SCt 3154; 82 LEd2d 340]; see also Tison v. Arizona (1987) 481 US 137, 149 [107 SCt 1676; 95 LEd2d 127].) This principle requires a state to construe death eligibility criteria to provide a "principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not." (Lewis v. Jeffers (1990) 497 US 764, 775 [110 SCt 3092; 111 LEd2d 606] [quoting Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]]; 8th and 14th Amendments.)

    These principles prohibit death eligibility based on felony murder unless the defendant: (1) was a "major participant" in the underlying felony and (2) had a mental state of "reckless disregard to human life." (Tison, 481 US at 158 and fn 12; see also Enmund v. Florida (1982) 458 US 782, 797-01 [102 SCt 3368; 73 LEd2d 1140] and Cabana v. Bullock (1986) 474 US 376, 385 [106 SCt 689; 88 LEd2d 704].)

    309.13.2    Death Eligibility Factor Must Not Be Overly Broad Or Vague

    An aggravating factor is invalid under the 8th and 14th Amendments if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. (Stringer v. Black (1992) 503 US 222, 228 [112 SCt 1130; 117 LEd2d 367]; Shell v. Mississippi (1990) 498 US 1 [111 SCt 313; 112 LEd2d 1]; Maynard v. Cartwright (1988) 486 US 356, 363 [108 SCt 1853; 100 LEd2d 372]; Godfrey v. Georgia (1980) 446 US 420, 428 [100 SCt 1759; 64 LEd2d 398].) "[I]n the final analysis 'the constitutional prohibition on arbitrary and capricious capital sentencing determinations is not violated by a capital sentencing "scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute."' [Citations.]" (People v. Bolin (CA 1998) 18 C4th 297, 342 [75 CR2d 412]; see also Buchanan v. Angelone (1998) 522 US 269, 276-77 [118 SCt 757; 139 LEd2d 702].)

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    The death eligibility determination must rationally narrow the class of individuals who are death eligible for valid penological reason[s]. (Spaziano v. Florida (1984) 468 US 447, 460 n7 [104 SCt 3154; 82 LEd2d 340]; see also Tison v. Arizona (1987) 481 US 137 [107 SCt 1676; 95 LEd2d 127].) This principle requires a state to construe death eligibility criteria to provide a "principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not." (Lewis v. Jeffers (1990) 497 US 764, 775 [110 SCt 3092; 111 LEd2d 606] [quoting Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]]; 8th and 14th Amendments.)

    From these principles it follows that any jury instruction on death eligibility factors or related matters must be must fully, accurately and understandably convey the required information to the jury. (See U.S. v. Gaudin (1995) 515 US 506, 511-13 [115 SCt 2310, 2316; 132 LEd2d 444] [it is "the jury’s constitutional responsibility...not merely to determine the facts, but to apply the law to those facts]; see also Estelle v. McGuire (1991) 502 US 62, 67-72 [112 SCt 475; 116 LEd2d 385] [due process may be implicated if the jury did not understand the instructions]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839 [when the judge fails in his or her duty to assure the jury’s proper conduct and determination of issues involving "constitutional requirements," the due process clause of the 14th Amendment is implicated (referring to Estelle v. McGuire)].)

    Additionally, Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] and Jones v. U.S. (1999) 526 US 227 [119 SCt 1215; 143 LEd2d 311] make it clear that full constitutional protections under the 5th, 6th and 14th Amendments apply to any factual determination upon which death eligibility is predicated. Under Jones and Apprendi, the determination of death eligibility must be made by the jury because it is "a process of raising the ceiling of the sentencing range available." (Jones, 119 SCt at 1228; see also Apprendi, 120 SCt at 2363.)

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    This instruction is required by the 8th and 14th Amendments of the federal constitution which requires heightened reliability in the determination of guilt and death eligibility before a sentence of death may be imposed. (See Beck v. Alabama (1980) 447 US 625, 627-46 [100 SCt 2382; 65 LEd2d 392].)

    The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: "Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case." (See also Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case "both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects"].) "[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error." (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)

    309.13.5    Fair And Reliable Sentencing Determination

    This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction [is necessary for] promotes a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].)

    When the state seeks death, courts must ensure that every safeguard designed to guarantee "fairness and accuracy" in the "process requisite to the taking of a human life" is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)

    "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long....Because of this qualitative difference, there is a corresponding difference in the need for reliability...." (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)

    As a result, the 8th Amendment requires a "greater degree of accuracy" and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case "both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects"].) "[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error." (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)

    The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: "Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case."

    The sentencing determination must also be fair. (See Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393] [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)

    This instruction is required by the 8th Amendment prohibition against cruel and unusual punishment which requires the individualized consideration of mitigating circumstances in determining a sentence of death.

    It is "well established" that the 8th and 14th Amendments requires "individualized sentencing determinations in death penalty cases." (Stringer v. Black (1992) 503 US 222, 230 [112 SCt 1130; 117 LEd2d 367]; Clemons v. Mississippi (1990) 494 US 738, 753 [110 SCt 1441; 108 LEd2d 725]; Penry v. Lynaugh (1989) 492 US 302, 317 [109 SCt 2934; 106 LEd2d 256]; 8th & 14th Amendments.)

    In Lockett v. Ohio (1978) 438 US 586 [98 SCt 2954; 57 LEd2d 973] and later in Eddings v. Oklahoma (1982) 455 US 104 [102 SCt 869; 71 LEd2d 1], the Court ruled that the sentencer must consider all relevant mitigating evidence in a capital case. In Skipper v. South Carolina (1986) 476 US 1, 4 [106 SCt 1669; 90 LEd2d 1] the Court, quoting Eddings, stated that the sentencer may "not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."

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    This instruction is required by the 8th Amendment of the federal constitution which requires that the jurors accept personal responsibility for their sentencing decision. (See Caldwell v. Mississippi (1985) 472 US 320, 328-34 [105 SCt 2633; 86 LEd2d 231] [reliability of verdict undermined when jury's sense of personal responsibility is compromised].)

    This instruction is required by the 8th and 14th Amendments of the federal constitution because premature deliberation as to penalty fosters unfairness and unreliability by promoting determination of the issues before hearing all the evidence, argument and instructions. (See McDonough Power Equipment, Inc. v. Greenwood (1984) 464 US 548, 552 [104 SCt 845; 78 LEd2d 663]; Winebrenner v. U.S. (8th Cir. 1945) 147 F2d 322, 328.) The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].)

    When the state seeks death, courts must ensure that every safeguard designed to guarantee "fairness and accuracy" in the "process requisite to the taking of a human life" is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)

    "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long....Because of this qualitative difference, there is a corresponding difference in the need for reliability...." (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)

    As a result, the 8th Amendment requires a "greater degree of accuracy" and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case "both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects"].) "[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error." (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)

    The instruction is also necessary because the sentencing determination must be fair. (See Gardner v. Florida, supra, 430 US 349 [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)

    309.13.9    The 8th Amendment Requires That The Jury Understand The Death Penalty Instructions

    The death penalty may not be imposed in a discriminatory, random, arbitrary, or capricious manner. (Stringer v. Black (1992) 503 US 222, 228 [112 SCt 1130; 117 LEd2d 367]; Sochor v. Florida (1992) 504 US 527, 532-36 [112 SCt 2114; 119 LEd2d 326]; McCleskey v. Kemp (1987) 481 US 279, 282 [107 SCt 1756; 95 LEd2d 262]; Gregg v. Georgia (1976) 428 US 153, 204 [96 SCt 2909; 49 LEd2d 859]; 8th & 14th Amendments.)

    The constitutionality of any death sentence is grounded on crucial 8th Amendment requirements such as rationally narrowing of death eligible defendants (see e.g., Tison v. Arizona (1987) 481 US 137 [107 SCt 1676; 95 LEd2d 127]; Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]), individualized consideration of the defendant (see e.g., Stringer v. Black (1992) 503 US 222 [112 SCt 1130; 117 LEd2d 367]; Clemons v. Mississippi (1990) 494 US 738, 753 [110 SCt 1441; 108 LEd2d 725]), guided discretion (see e.g., Gregg v. Georgia, supra, 428 US 153).

    If the jury fails to understand and apply these or any other 8th Amendment requirement, as conveyed by the jury instructions, then the death sentence will violate the federal constitution.

    309.13.10    Jury Consideration Of Extrinsic Evidence Or Properly Admitted Evidence For An Improper Purpose

    This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction [is necessary for] promotes a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].)

    When the state seeks death, courts must ensure that every safeguard designed to guarantee "fairness and accuracy" in the "process requisite to the taking of a human life" is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 367; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)

    "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long....Because of this qualitative difference, there is a corresponding difference in the need for reliability...." (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)

    As a result, the 8th Amendment requires a "greater degree of accuracy" and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case "both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects"].) "[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error." (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)

    The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: "Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case."

    The sentencing determination must also be fair. (See Gardner v. Florida (1977) 430 US 349, 357-58 [97 SCt 1197; 51 LEd2d 393] [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)

    These principles are violated if the jury considers extraneous evidence which was not properly admitted at trial or consider admitted evidence for an improper purpose. (See NCJIC Constitutional Macro 7.3 [Consideration Of Matters Not Admitted Into Evidence] and 7.4 [Juror Consideration Of Evidence For An Improper Purpose].)

    The sentencer must consider "as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Lockett v. Ohio (1978) 438 US 586, 604 [98 SCt 2954; 57 LEd2d 973]; see also Weeks v. Angelone (2000) 528 US 225 [120 SCt 727, 732; 145 LEd2d 727] ["the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence ..."]; Buchanan v. Angelone (1998) 522 US 269, 276 [118 SCt 757; 139 LEd2d 702] [same]; 8th & 14th Amendments.) This includes the defendant's mental impairment and background. (Penry v. Lynaugh (1989) 492 US 302, 320 [109 SCt 2934; 106 LEd2d 256]; see also Eddings v. Oklahoma (1982) 455 US 104, 114-17 [102 SCt 869; 71 LEd2d 1].)

    "It follows as night the day that although the jury determines the appropriate weight to be given to the mitigating evidence, the jury 'may not give it no weight by excluding such evidence from their considerations.'" (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 837 [citation to Eddings v. Oklahoma (1982) 455 US 104, 115 [102 SCt 869; 71 LEd2d 1]].) Where the jury misunderstands its obligation to consider relevant mitigating evidence, "[t]he risk created by this legal derailment [is] that [the jury] would impose the death penalty 'in spite of factors which...[might] call for a less severe penalty.'" (McDowell, 130 F3d at 838 [citation to Lockett v. Ohio (1978) 438 US 586, 605 [98 SCt 2954; 57 LEd2d 973]].) "The Supreme Court has identified this risk as one 'unacceptable and incompatible with the commands of the 8th and 14th Amendments.' [Citation.]" (Ibid.)

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    This instruction is required by the 8th and 14th Amendments of the federal constitution which preclude mandatory death sentences.

    In general, a system for imposing the death penalty must focus on the circumstances of the crime and the character of the individual defendant and must provide "specific and detailed guidance" to the sentencing body. (See Jurek v. Texas (1976) 428 US 262, 268-276 [96 SCt 2950; 49 LEd2d 929] [upholding Texas statute limiting capital homicides to intentional and knowing murders committed in five specified situations, and creating sentencing procedure that requires jury in penalty phase of bifurcated trial to answer three questions affirmatively in order to sentence death, and also providing for expedited review by state court]; Proffitt v. Florida (1976) 428 US 242, 251 [96 SCt 2960; 49 LEd2d 913] [upholding Florida statute requiring sentencing judge, after bifurcated trial and advisory jury verdict, to weigh aggravating and mitigating circumstances when determining death sentence and set forth these findings in writing, and also providing for automatic review by state supreme court of all death sentences]; Gregg v. Georgia (1976) 428 US 153, 193-206 [96 SCt 2909; 49 LEd2d 859] [upholding Georgia statute requiring sentencing judge or jury, in bifurcated trial, to find at least one of ten statutory aggravating circumstances beyond a reasonable doubt when sentencing death, to consider any additional mitigating or aggravating evidence, and to specify aggravating circumstance(s) found, and also providing for direct review by state supreme court of appropriateness of all death sentences].)

    This instruction is required by the 8th and 14th Amendments of the federal constitution which preclude consideration of invalid aggravating factors. (See Espinosa v. Florida (1992) 505 US 1079, 1080-83 [112 SCt 2926; 120 LEd2d 854]; Clemons v. Mississippi (1990) 494 US 738, 752 [110 SCt 1441; 108 LEd2d 725].) The 8th Amendment requires "close appellate scrutiny of the import and effect of invalid aggravating factors ...." (Stringer v. Black (1992) 503 US 222, 230 [112 SCt 1130; 117 LEd2d 367].) "Employing an invalid aggravating factor in the weighing process 'creates the possibility...of randomness,' [citation] by placing a 'thumb [on] death's side of the scale’ [citation] thus 'creat[ing] the risk [of] treat[ing] the defendant as more deserving of the death penalty’ [citation]." (Sochor v. Florida (1992) 504 US 527, 532 [112 SCt 2114; 119 LEd2d 326].)