No. 81-2-292, Appeal of Keith Zettlemoyer from the judgment of sentence of death, dated October 23, 1981, by the Honorable John C. Dowling, Judge, Twelfth Judicial District of Pennsylvania, docketed to No. 1818 Criminal Division 1980
Robert N. Tarman, Chief Public Defender, for appellant.
William A. Behe, Deputy Dist. Atty., Richard Lewis, Dist. Atty., Leroy Zimmerman, Atty. Gen., Marion E. MacIntyre, Asst. Atty. Gen., for appellee.
Judah Labovitz, A.C.L.U., amicus curiae.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., files a dissenting opinion in which O'Brien, C.j., joins. Nix, J., files a dissenting opinion.
This appeal raises the issue of the constitutionality of the death penalty which sentence was imposed by a jury upon Keith Zettlemoyer, appellant, pursuant to the procedures set forth in section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711.*fn1 For the reasons stated herein, we affirm appellant's conviction for murder of the first degree, find the sentencing procedures to be valid under both the federal and state constitutions, and uphold the sentence of death.
Appellant was arrested on October 13, 1980 and charged with criminal homicide for the shooting death of Charles DeVetsco. The trial was conducted in the Court of Common Pleas of Dauphin County before the Honorable John C. Dowling. On April 24, 1981, a jury convicted Keith Zettlemoyer of murder of the first degree, and, following a separate sentencing proceeding, that same jury pronounced a sentence of death. Following denial of his post-verdict motions by a court en banc, the case was automatically appealed to this Court. 42 Pa.C.S.A. § 9711(h)(1) and § 722(4).
As established by the Commonwealth's uncontradicted testimony and the reasonable inferences raised therefrom,
the facts demonstrate a "carefully planned, brutally carried out, cold-blooded execution of a young man scheduled to testify against the [appellant] in a pending felony trial." Opinion of the Court of Common Pleas of Dauphin County, En Banc, October 16, 1981, denying appellant's post-verdict motions. (Slip opinion at 1.) The evidence discloses the following.
In the early morning hours of October 13, 1980, two officers of the Conrail Police Department were on routine patrol in an unmarked car in the Harrisburg railroad yards when they heard gunfire (two shots) coming from a nearby area. The officers proceeded to the area -- an isolated, overgrown, unlit area used for dumping trash. When they arrived, the officers observed a 1967 Ford van parked on a dirt access road leading back to a creek and overgrown with bushes. Hearing rustling noises in the bushes in front of the van, the officers ordered the person making the noise to come out.
At this point, appellant emerged from the bushes holding a .357 magnum Smith and Wesson revolver in his right hand and a flashlight in his left. Appellant exclaimed "What's the matter, guys? I was only shooting rats." Officer Gregory W. Benedek replied "At 4:00 o'clock in the morning?", to which appellant responded "Yes, I do it all the time." The officers ordered appellant to drop his gun which, after hesitating several seconds, he finally did, at which point he was secured.
Sergeant William J. Houtz then retraced appellant's path into the woods and located the still trembling body of the victim, Mr. DeVetsco, lying face down. Charles DeVetsco had been shot four times, twice in the neck with a .22 caliber weapon and twice in the back with the .357 magnum in appellant's hand. The victim had been shot with a .22 caliber weapon while in the van (as indicated by several blood-soaked items, two spent .22 caliber bullet casings, and the weapon, all found in the van), handcuffed, and dragged from the van into the bushes where the fatal shots were fired (as indicated by drag marks and blood drippings).
When appellant emerged from the bushes, he was dressed in dark clothing, wearing dark gloves, and was heavily armed. Found on his person by officers of the Harrisburg Police Department who had quickly arrived on the scene, as well as by Conrail officers, were a hunting knife, 41 rounds of semijacketed hollow point .357 magnum ammunition (more deadly than "normal" ammunition), a shoulder holster, a tear gas canister, penlight and two handcuff keys.
All of the victim's wounds were consistent with the shooting having been done while the victim was lying face down. The cause of death was massive hemorrhaging of the heart which had been penetrated by the .357 magnum bullets.
The Commonwealth also demonstrated that the victim had worked a short while with the appellant at a retail store and had been scheduled to appear as a witness on behalf of the Commonwealth, and against appellant who was a defendant in a criminal proceeding in Snyder County. During the jury selection portion of those proceedings on October 6, 1981, the Commonwealth indicated, in appellant's presence, that the prosecution intended to call Charles DeVetsco. The trial of that matter was to have begun on October 21, 1981.
Based upon the Commonwealth's uncontradicted evidence, it is clear that the victim was shot first with the .22 caliber weapon, dragged from the van into the deserted woods, and summarily executed by the appellant by two shots of the .357 magnum in order to prevent his (the victim's) testifying against appellant at the Snyder County criminal proceedings. The evidence is, thus, sufficient to establish appellant's guilt of murder of the first degree*fn2 beyond a reasonable doubt.*fn3
I. VALIDITY OF THE CONVICTION OF MURDER OF THE FIRST DEGREE
At trial, appellant admitted general criminal culpability for murder (see Notes of Testimony (N.T.), April 20, 1981, at 366; opening argument of defense counsel), but offered a defense of diminished capacity which defense was first recognized in this Court in Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), in an attempt to reduce the degree of guilt from murder of the first to murder of the third degree. (N.T. April 24, 1981 at 788; closing argument of defense counsel). Several of appellant's assertions of trial error are related to this defense.*fn4
In Walzack, this Court sustained as relevant the admission of certain psychiatric testimony to the effect that a pre-frontal lobotomy negated the required mens rea for
murder of the first degree, namely, that the actor had formed the specific intent to kill. This Court has quite recently explained that diminished capacity is an extremely limited defense, Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982), and that Walzack stands only for the proposition that "psychiatric testimony which speaks to the legislatively defined state of mind encompassing a specific intent to kill is admissible." Id., 499 Pa. at 113, 451 A.2d at 1347. Thus, psychiatric testimony is irrelevant, under Walzack, unless "it speaks to mental disorders affecting the cognitive functions [of deliberation and premeditation] necessary to formulate a specific intent." Id., 499 Pa. at 114, 451 A.2d at 1347.*fn5 This Court carefully examined the proferred psychiatric testimony in Weinstein and determined that it was no more (nor less) than testimony as to that appellant's irresistable impulses or inability to control himself, and not to his ability to formulate and carry out a plan or design, and was, therefore, irrelevant and inadmissible on the issue of appellant's specific intent to kill. Id., 499 Pa. at 119, 451 A.2d at 1350.
Essentially, as will be seen, such was also the quality of the evidence produced in the instant case. Appellant offered the testimony of nine lay witnesses and a psychologist, Dr. Stanley Schneider, to support his assertion that appellant had a "schizoid personality with paranoid features." (N.T. April 23, 1981 at 714-15). After Dr. Schneider had testified at length as to the numerous tests he had made on appellant and had given his diagnosis of "schizoid personality with paranoid features," defense counsel asked the following question: "[W]ith a reasonable degree of medical certainty, was the defendant's mental illness of such an intensity at that time, at the time of the killing, that he was not mentally capable of fully forming the specific intent
which is required for a willful, deliberate and premeditated act?" (N.T. April 23, 1982 at 725). The court sustained the Commonwealth's objection to this question on the grounds that no foundation had been laid for the psychologist to express such an opinion and that the evidence that had been introduced was irrelevant to the question of whether appellant had the capability to form the specific intent to kill. This ruling was correct.
Initially, we reject appellant's contention that certain language in two post- Walzack cases expressed an intention on the part of this Court to extrapolate the dimensions of the defense of diminished capacity. In Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), three Justices of this Court found that the trial court had not erred in giving a jury instruction on diminished capacity which included the statement "[i]f you find the defendant has a diminished capacity due to his personality disorder, this diminished capacity may be considered by you . . ." Id., 492 Pa. at 31 n. 2, 422 A.2d at 121 n. 2. As Commonwealth v. Weinstein, supra, instructs, this jury charge gave far too liberal an interpretation of Walzack and, accordingly, was eminently more favorable to the appellant than a correct charge would have been. See Commonwealth v. Hamilton, 459 Pa. 304, 329 A.2d 212 (1974), cert. denied 420 U.S. 981, 95 S.Ct. 1411, 43 L.Ed.2d 663 (1974). Accordingly, the statement by the plurality in Sourbeer that the jury instruction was "perfectly proper" was only intended to hold that any error was beneficial to the appellant and cannot be read to imply that a "personality disorder" will suffice to demonstrate an accused's diminished capacity.
Similarly, in Commonwealth v. Brantner, 486 Pa. 518, 406 A.2d 1011 (1979), the defense had offered psychiatric testimony which indicated that the appellant therein had a "schizoid personality and was paranoid." We did not discuss or consider the relevance of that testimony to the defense of diminished capacity, but, rather, simply stated:
The prosecution offered appellant's own statement reflecting a consciousness of the consequences of his own acts,
and also produced lay testimony going to establish appellant's sanity. Viewing all of the evidence in a light most favorable to the Commonwealth (citation omitted), we find the evidence more than sufficient to permit the jury to reject any suggestion of diminished capacity and to find that appellant intended to cause the death of his victims. (citation omitted; emphasis added).
Obviously, Brantner cannot be read to support appellant's claim that a diagnosis of "schizoid personality with paranoid features" is relevant to the issue of a defendant's mental capacity to form the specific intent to kill. The trial court considered both Sourbeer and Brantner and quite properly discarded the notion that personality disorders or schizoid/paranoid diagnoses are relevant to a Walzack /diminished capacity defense. See N.T. April 23, 1981 at 726-28. Judge Dowling observed:
Upon reflection I do not believe I should have allowed the testimony [of Dr. Schneider]. I think I have allowed [defense counsel] an extraordinary latitude in describing what is not an untypical criminal personality and I can see no basis for this expert coming to the conclusion that you have asked him . . . . How he could come to that conclusion even though it is only an opinion, I think all of his testimony could well be stricken . . . . he has simply described a relatively typical criminal personality.
N.T. at 725-26. An analysis of the defense testimony proves the accuracy of Judge Dowling's observations.
The lay witnesses who came in contact with the appellant on the morning after the homicide or within a few days of the incident, testified that appellant's eyes looked "glassy" or "glazed", that he "stared" a lot, that he was "like in a trance", that he appeared sleepy and unstable, and that he acted like he "could have been" under the influence of drugs or alcohol.*fn6 None of this testimony is surprising
considering that most of these observations were made after appellant had been awake all night in police custody following what must have been a rather exhausting execution, was without the eyeglasses which he normally wore, and was in an atmosphere of incarceration which can never be described as a pleasant experience. Moreover, these witnesses testified that appellant understood the proceedings, his rights, signed his name when asked, and responded, albeit tersely, to orders. The testimony of these witnesses has absolutely no bearing on whether, at the time of the killing, appellant had the mental capacity to form the specific intent to kill, especially in light of the unanimous testimony of all of the officers at the scene of the crime that appellant was responsive, conversed rationally and appeared normal until after appellant left the scene in a police cruiser.*fn7
Also irrelevant to appellant's ability to form the requisite mens rea for an intentional killing was the testimony of appellant's grandmother, Mrs. Thelma A. Zettlemoyer (N.T. at 651-57) and mother, Mrs. Donna Zettlemoyer (N.T. at 657-90). Basically, their testimony profiled appellant as a temperamental, spoiled, anti-social young man (appellant was 25 years old at the time of trial) who could not maintain a job or a relationship with women, and who seemed very depressed in the weeks preceding the shooting of appellant's
one-time friend, Charles DeVetsco. Once again, this testimony sheds no light whatsoever on appellant's mental capacity to premeditate, deliberate and form the specific intent to kill.
Finally, the defense presented Dr. Schneider, a clinical psychologist who testified extensively over the Commonwealth's objections. Dr. Schneider was given wide latitude in describing his observations and the methods he used to arrive at his diagnosis. Some of his findings were that appellant was not psychotic, possessed average intelligence (I.Q. 98) and scored extremely high in the "deception area" (i.e., he attempted to deceive the tester in at least one of the psychological tests that Dr. Schneider administered.) N.T. at 711, 708, 712-13, 709. Asked to give his "final diagnosis", Dr. Schneider replied: "As a result of the testing, the interview and my conversations with family members, my diagnostic impression is that we have a schizoid personality with paranoid features -- well, paranoid and inadequate features." To clarify this diagnosis, Dr. Schneider explained his jargon thusly, N.T. at 715-16:
Answer: A personality disorder is a lifelong set of rather established, well entrenched personality traits. A schizoid personality is an individual who is eccentric, may be referred to as queer in terms of, not his sexual preferences but his behavior, shy, oversensitive, usually detached, seemingly unemotional in the face of upsetting events and experiences. There is typically a defect in the capacity to form social relationships. There is little or no desire for social involvement. They are usually loners. They have few close friends, reserved, withdrawn, reclusive. They usually pursue solitary interests and jobs, often humorless, dull, cold and aloof. These are typical descriptors of a schizoid personality.
Question: Do you feel specifically that those symptoms or those characteristics that you have just named apply to Mr. Keith Zettlemoyer?
Question: Now, moving on to the term paranoid, would you please describe for the ladies and gentlemen of the jury what that means and what significance to your findings that word means?
Answer: In lay terms it would be a belief that, or an indication that people are out to harm you or hurt you, get you, essentially.
Finally, Dr. Schneider applied his psychological labels to appellant and rendered the following observations:
I also mentioned that Mr. Zettlemoyer is an inadequate person which essentially means that he was unable, as I indicated, to deal with the normal pressures, demands, responsibilities of daily living. He has never completed anything to my knowledge successfully, whether it be socially, personally or vocationally. He has failed and I believe that his reaction over this period of time resulted in, well, what I refer to as a pressure cooker syndrome, pressure mounting up. If you don't have a release valve it will blow and that's where I believe that the emotional disturbance, in addition to the personality disorder, may have resulted in the behavior.
I find that Mr. Zettlemoyer is a pampered, doted upon, catered to, in simple terminology spoiled brat who figured out how to get what he wanted, either directly or by manipulating or controlling the situation to get what he wanted his entire life and I believe that faced with the number of stresses that he had to deal with that he could not cope with, and he decompensated.
N.T. at 719-21. (emphasis added) (See also defense counsel's closing arguments focusing on this asserted "pressure-cooker syndrome". N.T. at 773.)
It should be apparent from the foregoing summary of the "defense", that the psychiatric/psychological testimony of Dr. Schneider falls well short of the objective quantum of reliability and relevance which this Court requires, Commonwealth v. Stasko, 471 Pa. 373, 383-85, 370 A.2d 350, 355-56 (1977), quoting Commonwealth v. McCusker, 448 Pa. 382, 388-89,
A.2d 286 (1972), before such testimony will be deemed admissible on the issue of whether appellant had the mental capacity to form the specific intent to kill. Moreover, the "defense" offered in this case is simply an attempt to once again foist the "irresistible impulse" concept upon this Court under different nomenclature, an attempt which we have consistently rejected and will continue to resist. See, e.g., Commonwealth v. Tomlinson, 446 Pa. 241, 284 A.2d 687 (1971) wherein we stated:
Defendant in the instant case makes the same contentions as were made in the aforesaid cases, but instead of calling himself a mental defective or a sexual pervert, or some kind of psychopath, or that he had an irresistible impulse, he contends that his is a case of "diminished responsibility." By whatever name psychiatrists, or doctors or lawyers call it, an inability to control one's self under certain circumstances is legally insufficient to justify an acquittal of murder, or a reduction of a first degree murder killing to [a murder of a lesser] degree.
The doctrine of "irresistible impulse" or in the modern psychiatric vernacular "inability to control one's self", whether used to denote legal insanity, or as a device to escape criminal responsibility for one's acts or to reduce the crime or its degree, has always been rejected in Pennsylvania.
Such a theory or philosophy would soon transfer the punishment of criminals from Courts to psychiatrists and would inevitably result in a further breakdown of law enforcement and eventual confusion and chaos. Fortunately our cases are opposed to such an undesirable result. Id., 446 Pa. at 252-54, 284 A.2d at 696 (citations and references omitted).
Thus, in this case as in Commonwealth v. Weinstein, supra, appellant's "expert was unable to speak to the issue of specific intent, recognizable by the law, and was unable logically to relate [appellant's] underlying disease or mental
defect to his uncontrollable act. [Appellant] was clearly able to formulate and carry out a plan or design." 499 Pa. at 118, 451 A.2d at 1350. Accordingly, the trial court did not err in refusing to allow Dr. Schneider to express his opinion as to whether appellant possessed sufficient mental capacity to form the specific intent to kill, especially in light of the fact that the psychologist had already testified extensively and the jury was in a position, under proper instructions, to draw its own conclusion as to this issue.*fn8
Appellant alleges, however, that the jury did not receive proper instructions. As stated by the court en banc, the appellant "asserts here that the court's charge to the jury on what constituted a defense of diminished capacity left it with the impression that it was not proven in the instant case. As is usual in such complaints, isolated portions of the charge are extracted with materially qualifying sentences or phrases conveniently omitted." Slip opinion at 13. The entire charge on diminished capacity was stated as follows, with the portions identified by appellant as objectionable underscored:
The defense in this case is diminished capacity. That is the term. It is a relatively new term in the law of Pennsylvania. It evolved out of a case, a Pennsylvania decision by the Supreme Court of Pennsylvania in 1976 where, in that case a psychiatrist, they offered the testimony of a psychiatrist that the deceased -- or the defendant had had a lobotomy and didn't possess the requisite intent. The Court held that that evidence should have been admitted. I am not saying that it has to be limited
to that type of case but that's where it came into the law, this theory of diminished capacity.
What it is, it is a contention that because of the mental capacity of the defendant he did not have the ability to form a specific intent to kill at the time he committed the crime. That is what they are saying . . . .
You must keep this in mind, that we cannot use, when we are talking about something that prevents the defendant from having a specific intent to kill. It is not an excuse for antisocial behaviour. It is not something that excuses someone who is spoiled or pampered or someone who loses their control or judgment under stress, somebody who has a poor life style, is a loser in life, somebody who reacts to stress by violence; that is not what we are talking about. If you are satisfied and the Commonwealth has proven to you beyond a reasonable doubt that he had a specific intent to kill, the defense says because of all these things, because of his personality, he could not form the specific intent to kill. That is what diminished capacity means. He did not have the capacity to form the intent to kill. It is not an excuse for a personality disorder or someone who is antisocial, but it is evidence, and you have heard it from family, you have heard it from a psychologist and you take that evidence into account in deciding the issue as to whether at the time the crime was committed, at the time Mr. DeVetsco was murdered, the defendant had a specific intent to kill him. That is the issue and that is where the evidence becomes relevant.
The defense is that because of his life style, or his personality, and you have heard all about that, that he lacked the specific intent to kill. Well, if he didn't have it at the time he committed the crime, the specific intent to kill, then he can't be guilty of murder in the first degree.
The burden of proof rests with the Commonwealth to prove each element of the crime beyond a reasonable doubt. Therefore, in order to meet the burden of proof
required for murder of the first degree, the Commonwealth must prove beyond a reasonable doubt that the killing was willful, deliberate and premeditated and that at the time of the killing the defendant was not acting with a diminished capacity.
The mere fact that the Commonwealth produced evidence tending to show that the defendant may have had a motive to kill or that he planned and premeditated the killing does not necessarily eliminate the defense of diminished capacity. If you have a reasonable doubt that during that time period in which the defendant planned and premeditated that he suffered a mental illness, defect or abnormality which prevented him from fully forming the specific intent required for murder of the first degree then you must find him not guilty of first degree murder. I affirm that but again, I call your attention to the fact that the defense of diminished capacity is whether or not -- the issue is did he possess sufficient mental capacity to form the specific intent required at the time that he committed the killing but, of course, the background may be evidence on that. Now, I commented to you and whatever I said is on the record, I don't recall it verbatim, that diminished capacity does not mean somebody who was antisocial or who was prone to violence or who was temperamental and can't control himself and can't react to stress. I say that again, that should be pretty obvious. However, I am not saying that you should disregard the evidence about the defendant's personality. It is relevant, you may use it as relevant as to whether or not at the time he killed DeVetsco, he had the specific intent to kill.
I also mentioned the case in which this doctrine of diminished capacity came into the law of Pennsylvania and I mentioned to you that it involved an offer of psychiatric testimony concerning that the defendant had a lobotomy. Now, I didn't mean that to say that's the type of case that you have to have, such an extreme case. There have been since then two other cases that I know of
and they did not involve this type of illness. I don't recall what they did, what the testimony was but I merely gave you that historically just to show you how it started.
N.T., April 24, 1982; court's charge to the jury.
In viewing the charge in its entirety, as we must, Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508 (1978), it is evident that the jury was adequately instructed on the defense of diminished capacity. Appellant complains that the underscored portions of the charge and the court's use of such phrases as "inability to deal with stress," "loser in life," "spoiled and pampered," "antisocial personality," "personality disorder," etc., were selected parts of defense testimony and did not correctly and fairly convey the appellant's defense." Brief for appellant at 19.
This complaint is unfounded. Appellant totally isolated these terms from the charge as a whole. The terms were also fully and properly explained in the language of diminished capacity to form the specific intent (premeditation, deliberation) to kill, and were, contrary to appellant's contention, fair and accurate portrayals of appellant's defense as can readily be seen in the testimony of Dr. Schneider as well as in the closing argument of defense counsel.*fn9
The entire defense was infested with the language of irresistible impulse and the court was wise to inform the jury which facts did not bear upon the defense of diminished capacity. As this Court explicitly stated in Commonwealth v. Neill, 362 Pa. 507, 514, 67 A.2d 276, 280 (1949):
Certainly neither social maladjustment, nor lack of self-control, nor impulsiveness, nor psycho-neurosis, nor emotional instability, nor chronic malaria, nor all of such conditions combined, constitute insanity within the criminal conception of that term.
And see Commonwealth v. Weinstein, supra 499 Pa. at 121, 451 A.2d at 1351 (McDermott, concurring memorandum). Neither do these conditions bear upon the narrow defense of diminished capacity. In fact, the court would not have committed error in ruling, as a matter of law, that appellant had failed to produce sufficient evidence of diminished capacity and had, therefore, refused to charge on the issue. See Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978) citing Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975). See also Commonwealth v. Weinstein, supra (psychiatric testimony, later introduced at sentencing hearing, properly excluded from guilt stage of proceedings as it was held to be irrelevant to defense of diminished capacity).
II. VALIDITY OF THE DEATH PENALTY IMPOSED PURSUANT TO SECTION 9711 OF THE SENTENCING CODE
In Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), this Court recognized that under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Pennsylvania's then existing capital punishment statute was unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution, and so declared invalid the Act of June 24, 1939, P.L. 872 § 701, as amended 18 P.S. § 4701. In apparent response to the void in Pennsylvania law regarding imposition of a death penalty engendered by Bradley, the General Assembly in 1972 adopted section 1102
of the Crimes Code which merely stated "[a] person who has been convicted of murder of the first degree shall be sentenced to death or to a term of life imprisonment." Commonwealth v. McKenna, 476 Pa. 428, 435, 383 A.2d 174, 178 (1978). As it was "manifest that in no way could § 1102 have been designed to cure the constitutional infirmities of the Act of 1939 . . .", it seemed that "§ 1102 had no purpose other than to provide some legislative authority for the imposition of a death sentence until the General Assembly could formulate an adequate response to the implications of the Furman decision." Id.
In 1974, the legislature enacted section 1311 of the Sentencing Code, 18 Pa.C.S.A. § 1311, Act of March 26, 1974, P.L. 214, No. 46, in an attempt to comply with the Furman and Bradley decisions. This attempt failed. While section 1311 did provide sentencing procedures intended to channel the jury's discretion (and thus avoid the danger of the death penalty being imposed in a wanton and freakish, arbitrary and capricious manner, Furman v. Georgia, supra 408 U.S. at 310, 92 S.Ct. at 2762 (Stewart, J., concurring), at 313, 92 S.Ct. at 2764 (White, J., concurring), and at 256-57, 92 S.Ct. at 2735-2736 (Douglas, J., concurring)), it went too far in excluding from jury consideration evidence pertaining to the individual history and character of the offender. ...