schad arizona argued february decided june found murder victim vehicle belongings petitioner schad indicted murder trial prosecutor advanced premeditated felony murder theories schad claimed circumstantial evidence proved thief murderer refused schad request instruction theft lesser included offense charged jury murder jury convicted murder sentenced death state affirmed rejecting schad contention trial erred requiring jury agree single theory murder also rejected schad argument beck alabama required instruction lesser included offense robbery held judgment affirmed affirmed justice souter delivered opinion respect part iii concluding beck alabama held unconstitutional state statute prohibiting lesser included offense instructions capital cases entitle schad jury instruction robbery beck based concern jury convinced defendant committed violent crime convinced guilty capital offense might nonetheless vote capital conviction alternative set free punishment see concern simply implicated since jury given third option finding schad guilty lesser included noncapital offense murder irrational assume jury chose capital murder rather murder means keeping robber streets thus trial choice instructions sufficed ensure verdict reliability pp justice souter joined chief justice justice justice kennedy concluded part ii arizona characterization murder single crime jury need agree one alternative statutory theories premeditated felony murder unconstitutional pp relevant enquiry schad argues whether constitution requires unanimous jury state capital cases rather real question whether constitutionally acceptable permit jury reach one verdict based combination alternative findings pp rule jury need agree overt act among several means crime committed provides useful analogy nevertheless due process clause place limits state capacity define different mind merely alternative means committing single offense point differences means become important may reasonably viewed alternatives common end must treated differentiating constitution requires treated separate offenses subject separate jury findings pp impossible lay single test determining two means disparate exemplify two inherently separate offenses instead concept due process demands fundamental fairness rationality essential component fairness must serve measurement level definitional verdict specificity permitted constitution pp relevant enquiry must undertaken threshold presumption legislative competence decisions facts material immaterial terms winship fact necessary constitute crime therefore must proved individually facts mere means represent value choices appropriately made first instance legislature support restraint cases made clear slightly different context must permitted degree flexibility determining facts necessary constitute particular offense within meaning winship see patterson new york pp translating due process demands fairness rationality concrete judgments adequacy legislative determinations courts look history widely shared state practice guides fundamental values see thus significant arizona equation mental premeditated felony murder species blameworthy state mind required prove single offense murder finds substantial historical contemporary echoes see people sullivan state buckman neb pp whether everyone agree mental state precipitates death course robbery moral equivalent premeditation clear equivalence reasonably found see tison arizona enough rule argument moral disparity bars treating two mental alternative means satisfy mental element single offense pp although foregoing considerations may exhaust universe potentially relevant sufficiently persuasive jury options case fall beyond constitutional bounds fundamental fairness rationality justice scalia reach result plurality respect schad claim different reason long general rule single crime committed various ways jurors need agree upon mode commission plurality observes one conceive novel umbrella crimes consistent due process submitted jury disparate theories murder basic form existed legal system centuries fall category traditional crime traditional mode submitting jury need pass fundamental fairness analysis plurality provides persuasive justification history event pp denise young argued cause petitioner briefs john bailey wayne ford assistant attorney general arizona argued cause respondent brief robert corbin attorney general ronald crimson briefs amici curiae urging affirmance filed solicitor general starr assistant attorney general mueller deputy solicitor general byson joel gershowitz commonwealth kentucky et al frederick cowan attorney general kentucky denise garrison ian sonego assistant attorney general attorneys general respective state follows john van de kamp california john kelly connecticut charlie oberly iii delaware robert butterworth florida michael bowers georgia james jones idaho linley pearson indiana joseph curran maryland michael moore mississippi william webster missouri marc racicot montana brian mckay nevada robert del tufo new jersey hal stratton new mexico lacy thornburg north carolina anthony celebrezze ohio robert henry oklahoma ernest preate pennsylvania travis medlock south carolina roger tellinghuisen south dakota charles burson tennessee paul van dam utah mary sue terry virginia justice souter announced judgment delivered opinion respect part iii opinion respect parts ii chief justice justice justice kennedy join case presents two questions whether murder conviction jury instructions require agreement whether defendant guilty premeditated murder felony murder unconstitutional whether principle recognized beck alabama entitles defendant instructions offenses lesser included within capital offense charged answer august highway worker discovered badly decomposed body lorimer grove underbrush highway nine miles south prescott arizona rope around neck coroner determined strangled death victim left home bisbee arizona eight days earlier driving new cadillac towing camper september petitioner driving grove cadillac stopped speeding new york state police told officers transporting car elderly friend named larry grove later month petitioner arrested salt lake city utah parole violation possession stolen vehicle search cadillac petitioner still driving revealed personal belongings grove petitioner wallet contained two grove credit cards petitioner begun using august items belonging grove discovered rental car found abandoned highway august petitioner rented car previous december never returned custody salt lake city petitioner told visitor deny area arizona state arizona particularly tempe arizona prescott arizona yavapai county arizona grand jury indicted petitioner one count murder petitioner extradited stand trial arizona statute applicable petitioner case defined murder murder wilful deliberate premeditated committed perpetration attempt perpetrate robbery rev stat ann supp petitioner convicted sentenced death conviction set aside collateral review petitioner retrial prosecutor advanced theories premeditated murder felony murder petitioner claimed circumstantial evidence proved thief murderer instructed jury irst degree murder murder result premeditation murder committed attempt commit robbery also first degree murder app also instructed must agree verdict must agree whether verdict guilty guilty defense requested jury instruction theft lesser included offense refused instruct jurors offense murder gave three forms reporting verdict guilty murder guilty murder guilty jury convicted petitioner murder hearing judge sentenced petitioner death arizona affirmed rejected petitioner contention trial erred requiring jury agree single theory murder explaining arizona first degree murder one crime regardless whether occurs premeditated murder felony murder although defendant entitled unanimous jury verdict whether criminal act charged committed defendant entitled unanimous verdict precise manner act committed quoting state encinas citations omitted granted certiorari ii petitioner first contention conviction instructions require jury agree one alternative theories premeditated felony murder unconstitutional urges us decide case holding sixth eighth fourteenth amendments require unanimous jury state capital cases distinct lesser penalties imposed see johnson louisiana apodaca oregon decline however suggested reasoning beg question raised even assuming requirement jury unanimity arguendo assumption fail address issue jury must unanimous petitioner jury unanimous deciding state proved state law prove petitioner murdered either premeditation course committing robbery question still remains whether constitutionally acceptable permit jurors reach one verdict based combination alternative findings jury unanimous reaching verdict petitioner proposed unanimity rule help jurors may combine findings premeditated felony murder petitioner conviction fall even without proposed rule instructions allowed forbidden combination words petitioner real challenge arizona characterization murder single crime verdict need limited one statutory alternative argues premeditated murder felony murder separate crimes jury must return separate verdicts issue case one permissible limits defining criminal conduct reflected instructions jurors applying definitions one jury unanimity way framing issue suggested analogy cases reflect rule criminal law indictment need specify overt act among several named means crime committed andersen example sustained murder conviction challenge indictment verdict returned duplicitous charging death occurred shooting drowning holding government required make charge alternative explained immaterial whether death caused one means cf borum upholding murder conviction three codefendants count failed specify three actual killing clair fundamental proposition embodied federal rule criminal procedure provides may alleged single count means defendant committed offense unknown defendant committed one specified means never suggested returning general verdicts cases jurors required agree upon single means commission indictments required specify one alone cases litigation generally different jurors may persuaded different pieces evidence even agree upon bottom line plainly general requirement jury reach agreement preliminary factual issues underlie verdict mckoy north carolina blackmun concurring footnotes omitted alternatives cases cited went course possibilities proving requisite actus reus present case involves general verdict predicated possibility combining findings best described alternative mental one premeditation intent required murder combined commission independently culpable felony see state serna arizona attempt commit robbery legal equivalent deliberation premeditation design see reason however rule jury need agree mere means satisfying actus reus element offense apply equally alternative means satisfying element mens rea say however due process clause places limits state capacity define different courses conduct mind merely alternative means committing single offense thereby permitting defendant conviction without jury agreement course state actually occurred axiomatic requirement due process statute may forbid conduct terms vague people common intelligence relegated differing guesses meaning see lanzetta new jersey citing connally general construction carries practical consequence defendant charged valid statute position understand specificity legal basis charge thus assumption system criminal justice rooted traditions conscience people ranked fundamental speiser randall quoting snyder massachusetts person may punished criminally save upon proof specific illegal conduct requisite specificity charge may compromised joining separate offenses see uco oil cert denied nothing history suggests due process clause permit state convict anyone charge crime generic combination jury findings embezzlement reckless driving murder burglary tax evasion littering example suffice conviction say however limits state authority decide facts indispensable proof given offense simply raise problem describing point differences means become important may reasonably viewed alternatives common end must treated differentiating constitution requires treated separate offenses see generally note harv rev although never attempted define constitutes immaterial difference mere means constitutes material difference requiring separate theories crime treated separate offenses subject separate jury findings body law federal circuits deriving primarily decision fifth circuit gipson wisdom addresses problem defendant gipson charged violating prohibited knowingly receiv ing conceal ing stor ing barter ing sell ing dispos ing stolen vehicle aircraft moving interstate commerce convicted trial judge charged jury need agree enumerated acts defendant committed fifth circuit reversed reasoning defendant right jury consensus course action violated joinder single count two distinct conceptual groupings receiving concealing storing forming first grouping referred housing bartering selling disposing marketing constituting second view acts within conceptual grouping sufficiently similar obviate need jurors agree committed whereas acts distinct conceptual groupings unrelated jury must decide separately grouping number lower courts adopted standard distinct conceptual groupings appropriate test peterson friendly cert denied duncan cert denied sub nom downing state baldwin persuaded gipson approach really answers question however although classification alternatives distinct conceptual groupings way express judgment limits permissible alternatives notion indeterminate provide concrete guidance courts faced verdict specificity questions see rice state md criticizing gipson criteria entirely clear provid ing little guidance trubitt patchwork verdicts verdicts american jury theory whether verdicts invalidated juror disagreement issues rev conceptual groupings may identified various levels generality priori standard determine level generality appropriate indeed one judge noted even facts gipson ther conceptual groupings six acts possible one might put six acts one conceptual group namely trafficking stolen vehicles manson state abrahamson concurring accord trubitt supra difficult see determine housing marketing ultimate acts metaphysical constitutional sense thus prohibit legislature including single offense trafficking short notion distinct conceptual groupings simply conclusory serve real test dissent avoid indeterminacy gipson approach adopting inflexible rule maximum verdict specificity dissent view whenever statute lists alternative means committing crime jury must indicate alternatives based defendant guilt post even indication statute seeks create separate crimes approach rests erroneous assumption statutory alternatives ipso facto independent elements defining independent crimes state law therefore subject axiomatic principle prosecution must prove independently every element crime see post citing winship sandstrom montana point fact statute issue gipson demonstrates legislatures frequently enumerate alternative means committing crime without intending define separate elements separate crimes question whether statutory alternatives constitute independent elements offense therefore dissent call mere tautology rather substantial question statutory construction see uco oil cases like one involving state criminal statutes dissent statutory alternatives test runs afoul fundamental principle free substitute interpretations state statutes state courts state courts determined certain statutory alternatives mere means committing single offense rather independent elements crime simply liberty ignore determination conclude alternatives fact independent elements state law see mullaney wilbur declining reexamine maine judicial decision maine law intentional criminally reckless killings aspects single crime felonious homicide murdock city memphis wall present case example determining general verdict murder permissible arizona law arizona effectively decided state law premeditation commission felony independent elements crime rather mere means satisfying single mens rea element issue case therefore whether state must held choice post arizona authoritatively determined state chosen treat premeditation commission felony independent elements crime rather whether arizona choice unconstitutional tempting course follow example gipson extent searching single criterion serve answer question facing us convinced however impracticability trying derive single test level definitional verdict specificity permitted constitution think instead test sense appropriate specificity distillate concept due process demands fundamental fairness see dowling rationality essential component fairness translating demands fairness rationality concrete judgments adequacy legislative determinations look history wide practice guides fundamental values well narrower analytical methods testing moral practical equivalence different mental may satisfy mens rea element single offense enquiry undertaken threshold presumption legislative competence determine appropriate relationship means ends defining elements crime judicial restraint necessarily follows recognition impossibility determining priori matter whether given combination facts consistent one offense decisions facts material immaterial terms winship supra fact necessary constitute crime therefore must proved individually facts mere means represent value choices appropriately made first instance legislature respect legislative competence counsels restraint judicial cf rostker goldberg lack competence part courts relative legislature counsels particularly appropriate cases like one call state definitions question goes without saying preventing dealing crime much business federal government irvine california plurality opinion lightly construe constitution intrude upon administration justice individual patterson new york support restraint cases made clear slightly different context must permitted degree flexibility defining fact necessary constitute crime winship cases arose state defined offense way exclude particular fact proved beyond reasonable doubt either placing burden defendants prove mitigating fact see patterson supra extreme emotional disturbance martin ohio see also mullaney supra heat passion sudden provocation allowing prosecution prove aggravating fact standard less reasonable doubt mcmillan pennsylvania possession firearm case defendant argued excluded fact inherently fact necessary constitute offense required proof beyond reasonable doubt winship even though fact formally element offense charged see issue presented similar arizona law neither premeditation commission felony formally independent element murder treated mere means satisfying mens rea element high culpability essence petitioner argument despite unitary definition offense means must treated independent element jury must agree premeditated murder felony murder inherently separate offenses cases words defendant argues inherent nature offense charged requires state prove element offense fact element legislative definition cases faced difficulty deciding abstract matter elements offense must comprise recognizing ur inability lay test mcmillan stressed state legislature definition elements offense usually dispositive see also patterson supra think similar restraint appropriate although recognize cases obviously constitutional limits beyond may go patterson supra see also mcmillan supra use due process measurement sense appropriate specificity assumes importance history widely shared practice concrete indicators fundamental fairness rationality require turning sources follow example set cases often found useful refer history current practice determining whether state exceeded discretion defining offenses see patterson supra nn see also martin supra mullaney supra state particular way defining crime long history widespread use unlikely defendant able demonstrate state shifted burden proof inherent element offense defined single crime multiple offenses inherently separate conversely freakish definition elements crime finds analogue history criminal law jurisdictions lighten defendant burden thus significant arizona equation mental premeditated murder felony murder species blameworthy state mind required prove single offense murder finds substantial historical contemporary echoes common law murder defined unlawful killing another human malice aforethought intent kill intent commit felony alternative aspects single concept malice aforethought see stephen history criminal law england although american jurisdictions modified common law legislation classifying murder degrees resulting statutes cases retained premeditated murder form felony murder invariably including murder committed perpetrating attempting perpetrate robbery alternative means satisfying mental state murder presupposes see lafave scott substantive criminal law pp nn ali model penal code indeed language arizona murder statute applicable identical relevant respects language first statute defining murder differences degree passed pennsylvania legislature series state decisions beginning leading case people sullivan agreed necessary jurors agree determination deliberate premeditated design take life deceased conclusion defendant time engaged commission felony attempt commit one sufficient juror convinced beyond reasonable doubt defendant committed crime murder first degree offense defined statute see people milan cal cal rptr people travis cert denied state fuhrmann iowa state wilson commonwealth devlin mass people embree state buckman neb james state state tillman utah see also brown state cert denied although state courts unanimous respect see state murray sufficiently widespread acceptance two mental alternative means satisfying mens rea element single crime murder persuade us arizona departed norm historical contemporary acceptance arizona definition offense verdict practice strong indication offen principle justice rooted traditions conscience people ranked fundamental patterson quoting speiser recognize high probability legal definitions practices comporting unlikely endure long retain wide acceptance odds notions fairness rationality sufficiently fundamental comprehended due process cf jackman rosenbaum holmes snyder say either history current practice dispositive mcmillan example even though many made fact issue possession weapon element various aggravated offenses unwilling conclude pennsylvania decision treat aggravating circumstance provable sentencing mere preponderance evidence deviated far constitutional norm violate due process clause pennsylvania particular approach adopted observed render pennsylvania choice unconstitutional see also martin relying history current practice patterson supra conversely neither antiquity practice fact steadfast legislative judicial adherence centuries insulates constitutional attack pacific mut life ins haslip quoting williams illinois fine history current practice significant indicators people regard fundamentally fair rational ways defining criminal offenses nevertheless always open critical examination said impossible lay single analytical model determining two means disparate exemplify two inherently separate offenses case us however scrutiny two possibilities proving mens rea first degree murder may appropriately take account function differences mental state perform defining relative seriousness otherwise similar identical criminal acts see generally ali model penal code defining differing mental two mental supposed equivalent means satisfy mens rea element single offense must reasonably reflect notions equivalent blameworthiness culpability whereas difference perceived degrees culpability reason conclude identified different offenses altogether petitioner made case moral disparity instance proper critical question whether premeditated murder necessarily moral equivalent felony murder possible instances latter cases recognized felony murders identical culpability compare tison arizona enmund florida point suggested examining state murder statutes frequently diverge felonies may predicate felony murder conviction compare ann supp theft predicate felony murder rev stat ann theft predicate question rather whether felony murder may ever treated equivalent murder deliberation particular whether robbery murder charged case may treated thus equivalent fact question considered three terms ago context capital sentencing jurisprudence tison supra held reckless disregard human life implicit knowingly engaging criminal activities known carry grave risk death represents highly culpable mental state may taken account making capital sentencing judgment conduct causes natural though inevitable lethal result accepted proposition disregard occurs example robber shoots someone course robbery utterly indifferent fact desire rob may unintended consequence killing victim well taking victim property whether everyone agree mental state precipitates death course robbery moral equivalent premeditation clear equivalence reasonably found enough rule argument moral disparity bars treating alternative means satisfy mental element single offense warrant considerations exhaust universe potentially relevant judgments legitimacy defining certain facts mere means commission one offense suffice persuade us jury options case fall beyond constitutional bounds fundamental fairness rationality course suggest jury instructions requiring increased verdict specificity desirable fact arizona recognized separate verdict forms useful cases submitted jury alternative theories premeditated felony murder state smith hold constitution command practice facts case ii petitioner second contention beck alabama entitled jury instruction offense robbery characterizes lesser included offense robbery murder beck held unconstitutional alabama statute prohibited lesser included offense instructions capital cases unlike jury beck jury given option finding petitioner guilty lesser included noncapital offense murder petitioner therefore succeed strict holding beck contends due process principles underlying beck require jury capital case instructed every lesser included noncapital offense supported evidence robbery offense case petitioner misapprehends conceptual underpinnings beck fundamental concern beck jury convinced defendant committed violent crime convinced guilty capital crime might nonetheless vote capital conviction alternative set defendant free punishment explained one hand unavailability third option convicting lesser included offense may encourage jury convict impermissible reason belief defendant guilty serious crime punished hand apparently mandatory nature death penalty alabama may encourage acquit equally impermissible reason whatever crime defendant deserve death hese two extraneous factors introduce level uncertainty unreliability factfinding process tolerated capital case omitted petitioner makes much fact theory defense trial murdered grove without premeditation supported murder conviction despite possession grove property someone else committed murder supported theft robbery conviction murder petitioner contends jurors accepted theory thought guilty robbery innocent murder unable return verdict expressed view beck based concern rules diminish reliability guilt determination capital cases argument runs jurors given opportunity return verdict conformity reasonable view evidence reply brief petitioner dissent makes similar argument post argument unavailing fact jury third option murder rather robbery diminish reliability jury capital murder verdict accept contention advanced petitioner dissent assume jury unconvinced petitioner guilty either capital murder loath acquit completely convinced guilty robbery might choose capital murder rather murder means keeping streets see basis assume irrationality satisfied murder instruction case sufficed ensure verdict reliability suggest beck satisfied instructing jury lesser included offense even one without support evidence cf roberts louisiana plurality opinion present case however petitioner concedes evidence supported murder conviction brief petitioner adequate indicate verdict capital murder represented impermissible choice judgment arizona affirmed footnotes murder perpetrated means poison lying wait torture kind wilful deliberate premeditated killing committed avoiding preventing lawful arrest effecting escape legal custody perpetration attempt perpetrate arson rape first degree robbery burglary kidnapping mayhem sexual molestation child age thirteen years murder first degree kinds murder second degree respondent contends petitioner waived contention failing raise lower arizona courts brief respondent arizona however addressed contention merits thereby preserving issue review see orr orr see also wechsler rationale law homicide colum rev perkins rationale mens rea harv rev although vagueness cases support notion requirement proof specific illegal conduct fundamental system criminal justice principle dependent upon limited concerns vagueness charge allowing jury combine findings embezzlement murder raise identical problems regardless specifically embezzlement murder defined identified right concomitant federal criminal defendant sixth amendment right unanimous verdict subsequent courts following gipson adopted characterization jeros reasons given earlier think right accurately characterized due process right one sixth amendment although difference characterization important respects chiefly state criminal defendant least noncapital cases federal right unanimous jury verdict see johnson louisiana apodaca oregon immaterial problem go deciding level verdict specificity constitutionally necessary statutes frequently enumerate alternatives clearly mere means satisfying single element offense adoption dissent approach requiring specific verdict every alternative produce absurd results example arizona murder statute issue prohibited inter alia wilful deliberate premeditated killing rev stat ann supp emphasis added dissent approach juries prosecutions brought statute presumably required deliver specific verdicts three willfulness deliberation premeditation note however perhaps obvious proposition history less useful yardstick cases dealing modern statutory offenses lacking clear common law roots cases like one deal crimes existed common law pennsylvania statute provided murder shall perpetrated means poison lying wait kind willful deliberate premeditated killing shall committed perpetration attempt perpetrate arson rape robbery burglary shall deemed murder first degree kinds murder shall deemed murder second degree ch dissent focus risks different punishment post premeditated felony murder ignores fact arizona sentencing statute applicable petitioner rev stat ann supp authorized maximum penalty death means committing murder see mcmillan pennsylvania relying fact pennsylvania law possession weapon neither alters maximum penalty crime committed creates separate offense calling separate penalty moreover dissent concern general verdict provide sentencing judge sufficient information jury findings provide proper premise decision whether impose death penalty post goes permissibility death sentence imposed circumstances issue currently us permissibility conviction make point example even trial judge case satisfied possible specific verdict concerns instructing jurors required agree single theory crime dissent insufficient sentencing information concern remain unless judge also taken additional step step unrelated petitioner right jury agreement specific conduct committed requiring return separate forms verdict relevant question present purposes jury must decide information must provide sentencing judge petitioner also contends jury instructed offense theft respondent argues claim lesser included theft offense instruction waived given respondent concession petitioner preserved claim robbery instruction view scope beck see infra need resolve waiver issue justice scalia concurring part concurring judgment crime jury yavapai county arizona convicted edward harold schad existed legal system largely unchanged since least early century see stephen history criminal law england moreland law homicide common law crime murder unlawful killing human person malice aforethought malice prepense consisted intention kill grievously injure knowledge act omission probably cause death grievous injury intention commit felony intention resist lawful arrest stephen supra see also blackstone commentaries hale pleas crown ed common law recognized degrees murder unlawful killing malice aforethought received punishment death see wharton law homicide ed moreland supra rigor rule led widespread dissatisfaction country see mcgautha california pennsylvania divided common law murder two offenses defining crimes thus murder shall perpetrated means poison lying wait kind willful deliberate premeditated killing shall committed perpetration attempt perpetrate arson rape robbery burglary shall deemed murder first degree kinds murder shall deemed murder second degree ch schad dissenting justices effect us abolish crime murder declare due process clause fourteenth amendment requires subdivision crime least premeditated murder felony murder plurality rejects course correctly view correct reason plurality observes long general rule single crime committed various ways jurors need agree upon mode commission see people sullivan cf joyce indictments pp ed clark criminal procedure pp ed bishop criminal procedure pp ed rule constitutional probably indispensable system requires unanimous jury verdict convict woman charred body found burned house ample evidence defendant set kill absurd set free six jurors believe strangled death caused fire accidentally hasty escape six others believe left unconscious set fire kill seems perfectly obvious also true plurality points see ante one conceive novel umbrella crimes felony consisting either robbery failure file tax return permitting verdict seem contrary due process issue us whether present crime falls former latter category plurality makes heavy weather issue starts proposition neither antiquity practice fact steadfast legislative judicial adherence centuries insulates constitutional attack ante internal quotations omitted true enough respect constitutional attacks view respect attacks either procedural component see pacific mut life insurance haslip scalia concurring judgment substantive component see michael gerald plurality opinion due process clause precisely historical practices define due fundamental fairness analysis may appropriately applied departures traditional american conceptions due process judges test individual notions fairness american tradition deep broad continuing tradition trial judges case submitting killing course robbery premeditated killing jury single charge novel composite subjected indignity fundamental fairness review norm country founded norm fourteenth amendment adopted remains norm today unless invent constitution rather enforce one impossible practice old common law still existence vast majority provide process due believe might well dissenters case certainly plurality provides satisfactory explanation apart endorsement history permissible combine one count killing course robbery killing premeditation point makes depravity mind required two may considered morally equivalent ante petitioner complain lack moral equivalence complains far know six jurors believed participating robbery six believed intended kill perhaps moral equivalence necessary condition allowing verdict stand surely plurality pretend sufficient permit example indictment charging defendant assaulted either tuesday wednesday despite moral equivalence two acts thus plurality approves arizona practice present case meets one conditions constitutional validity say conditions arizona practice meets respect think delivers critical examination ante plurality promises substitute reliance upon historical practice fact think analysis ultimately relies upon nothing historical practice whence derive even moral equivalence requirement acknowledge reality acknowledge rational limitation upon power critical examination obviously th requirement due process met trial according settled course judicial proceedings due process law process due according law land walker sauvinet citation omitted respect second claim asserted petitioner agree justice souter analysis join part iii opinion reasons affirm judgment arizona still never established degrees murder retain single crime murder encompasses premeditated killing killing course robbery see justice white justice marshall justice blackmun justice stevens join dissenting disagree result reached two separate issues deem proper result either issue alone warrants reversal petitioner conviction respectfully dissent winship makes clear due process mandates proof beyond reasonable doubt every fact necessary constitute crime defendant charged finding general jury verdict returned petitioner meets requirements due process plurality ignores import winship holding addition plurality mischaracterizes nature constitutional problem case true generally give great deference defining elements crimes fail see however truism advances plurality case failure defer recognizing obvious premeditated murder felony murder alternative courses conduct crime murder may established statute provides murder perpetrated means poison lying wait torture kind wilful deliberate liberated premeditated killing committed avoiding preventing lawful arrest effecting escape legal custody perpetration attempt perpetrate arson rape first degree robbery burglary kidnapping mayhem sexual molestation child age thirteen years murder first degree kinds murder second degree rev stat ann supp two types first degree murder two ways first degree murder committed one premeditated murder three elements one killing take place defendant caused someone death secondly malice malice simply means intended kill reckless disregarding life person killed along killing malice attached killing third element premeditation simply means defendant contemplated cause death reflected upon type first degree murder members jury call felony murder two components sic parts one death caused two death caused course felony case robbery find defendant committed robbery killed process robbery also first degree murder app consequently verdict simply pronounces defendant guilty murder provides clues whether jury agrees three elements premeditated murder two elements felony murder proven beyond reasonable doubt instead entirely possible half jury believed defendant guilty premeditated murder guilty felony half believed exactly reverse put matter another way plurality affirms conviction without knowing even single element either ways proving murder except fact killing found majority jury let alone found unanimously jury required arizona law defendant charged murder least entitled verdict something petitioner get case long possibility exists six jurors voted one element murder except fact killing means plurality attempts justify result reaches withstand scrutiny focusing vagueness cases see ante plurality misses point issue whether statute vague individual reasonably know conduct criminalized indeed statute specificity renders vagueness cases inapplicable problem arizona statute single heading criminalizes several alternative patterns conduct state free construct statute way violates due process state invoke one statutory alternative different specified elements without requiring jury indicate alternatives based defendant guilt plurality concedes nothing history suggests due process clause permit state convict anyone charge crime generic combination jury findings embezzlement reckless driving murder burglary tax evasion littering example suffice conviction ante close effect jury verdict case allowing jury return generic verdict following prosecution two separate theories specified elements effect jury verdict guilty crime based alternative theories embezzlement reckless driving thus statement arizona first degree murder one crime regardless whether occurs premeditated murder felony murder state encinas neither recognizes resolves issue case plurality likewise misses mark attempting compare case issue concerned proof facts regarding particular means crime committed see ante case burglary example manner entering element crime thus winship require proof beyond reasonable doubt factual details whether defendant pried open window screwdriver crowbar however require jury find beyond reasonable doubt defendant fact broke entered fact necessary constitute crime cases concerning shifting burdens creation presumptions help plurality cause see ante although consistently given deference state definition crime also made clear set forth elements crime state free remove burden proving one elements prosecution example sandstrom montana recognized montana law whether crime committed purposely knowingly fact necessary constitute crime deliberate homicide stressed state therefore shift burden proving lack intent defendant conversely patterson new york found violate due process require defendant establish affirmative defense extreme emotional disturbance death intent kill causation facts state required prove beyond reasonable doubt person convicted murder facts either presumed inferred order constitute crime question whether state must permitted degree flexibility defining elements offense see ante surely entitled deference determined premeditated murder felony murder separate paths establishing murder containing separate set elements state must held choice cf evitts lucey allow state avoid consequences legislative choices judicial interpretation permit state escape federal constitutional scrutiny even actions violate rudimentary due process suggestion state mind required felony premeditated murder may reasonably considered equivalent see ante unbelievable also ignores distinct consequences may flow conviction offense sentencing assuming requisite statutory aggravating circumstance exists death penalty may imposed premeditated murder conviction necessarily carries finding defendant intended kill see rev stat ann case felony murder conviction requires death occur felony defendant need proven killer thus required order death penalty imposed felony murder must finding defendant fact killed attempted kill intended killing take place lethal force used enmund florida defendant major participant felony exhibited reckless indifference human life tison arizona instant case general verdict rendered jury contained finding intent actual killing petitioner sentencing judge declared however consider fact felony murder instruction given mitigation however evidence indicate murder merely incidental robbery nature killing belies finds beyond reasonable doubt defendant attempted kill larry grove intended kill larry grove defendant kill larry grove victim strangled death ligature drawn tightly neck tied double knot reasonable conclusion drawn proof case notwithstanding felony murder instruction tr ii also agree requirements beck alabama satisfied instructions verdict forms case beck held evidence unquestionably establishes defendant guilty serious violent offense leaves doubt respect element justify conviction capital offense failure give jury third option convicting lesser included offense seem inevitably enhance risk unwarranted conviction majority finds beck satisfied jury opportunity convict petitioner murder see ante alternative provided third option choice convicting petitioner felony acquitting completely state concedes see tr oral arg murder lesser included offense premeditated murder thus arizona declared jury may instructed lesser degree murder first degree evidence committed course robbery state clayton quoting state kruchten cert denied emphasis added consequently jury believed course events led path felony rather premeditated murder convicted petitioner murder legitimate third option capital murder acquittal state asserts felony murder lesser included offenses order defendant convicted felony murder however must evidence support conviction underlying felony jury must instructed elements underlying felony although jury need find underlying felony completed felony murder statute requires least attempt commit crime result jury convicted petitioner felony without first finding guilty robbery attempted robbery indeed petitioner first conviction reversed trial judge failed instruct jury elements robbery arizona declared fundamental error present trial judge fails instruct matters vital proper consideration evidence knowledge elements underlying felonies vital jurors properly consider felony murder theory citation omitted true rule beck applies fact lesser included offense defendant charged lesser included offense exists lesser included offense instruction detracts rather enhances rationality process spaziano florida deference due state legislatures courts defining crimes deference constitutional limits case compound crime felony murder one crime must proven order prove underlying crime must matter law lesser included offense greater sufficient third option given one prosecution theories state chooses proceed various theories lesser included offenses relevant lesser included instructions verdict forms theory must given order satisfy beck anything less renders beck due process guarantees meaningless due respect dissent changes arizona murder statute since date murder question make even clearer felony murder premeditated murder different elements involve different mentes reae statute provides two offenses alternative means establishing murder first person guilty ntending knowing conduct cause death person causes death another premeditation rev stat ann second person guilty cting either alone one persons person commits attempts commit one series specified felonies course furtherance offense immediate flight offense person another person causes death person antecedent current statute used substantially language took effect october less two months killing issue occurred ch even arizona acknowledged lack information concerning juror agreement may call question validity general jury verdict prosecution proceeds alternative theories state smith indeed petitioner first trial exemplified danger state proceeded three theories premeditated murder felony felony trial judge failed instruct jury either underlying felonies arizona held fundamental error petitioner conviction reversed impossible tell general jury verdict whether petitioner found guilty premeditated murder felony murder instructions deficient cf sandstrom montana similar reasons plurality focus statutorily enumerated means satisfying given element offense see ante misplaced even crime murder generic different categories offense carry risks different punishment constitutionally significant mullaney wilbur example concluded absence heat passion sudden provocation expressly stated element offense homicide essential reduce punishment category crime murder manslaughter consequently state violated winship principles due process requiring defendant establish absence intent required murder thereby rebut presumption malice mullaney supra discussed disparate intent requirements premeditated murder felony murder consequences sentencing arizona law consistent point arizona cases long said lesser included homicide offense crime felony murder since mens rea necessary satisfy premeditation element first degree murder supplied specific intent required felony state arias emphasis added recent cases omitted crucial word homicide see state lagrand cert denied recent decision schmuck adopted elements test defining necessarily included offenses purposes federal rule criminal procedure test one offense necessarily included another unless elements lesser offense subset elements charged offense schmuck supra see also berra test met petitioner convicted felony unless jury found robbery attempt commit robbery occurred