In an application in a federal court by a state prisoner for a
writ of habeas corpus, 28 U.S.C. § 2254(d) establishes a
presumption of correctness for
"a determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in a
proceeding to which the applicant for the writ and the State . . .
were parties, evidenced by a written finding, written opinion, or
other reliable and adequate written indicia."
An exception to this presumption occurs where the federal habeas
court, on reviewing the state court record, concludes that the
state court's factual finding "is not fairly supported by the
record." Respondent was convicted of murder at a jury trial in an
Ohio court. At the trial, the prosecution sought to prove a
"specification," for purposes of obtaining the death penalty
against respondent. There were admitted into evidence, to be
considered only in connection with the specification, a copy of an
Illinois indictment, a copy of a so-called "conviction statement,"
and the transcript of a hearing in an Illinois trial court in which
respondent pleaded guilty to charges in the indictment. Before
admitting such evidence, the Ohio trial court conducted a hearing
to determine whether respondent's guilty plea to the Illinois
charge was knowing and voluntary. On review of the Illinois records
and upon testimony by respondent as to his recollection of the
Illinois proceedings, the court held that respondent had
intelligently and voluntarily entered his plea of guilty in the
Illinois court. Upholding respondent's murder conviction, the Ohio
Court of Appeals held that the specification based on the prior
Illinois conviction was adequately proved, and that the trial court
did not err in ruling that respondent's guilty plea in the Illinois
court was knowing and voluntary, and should be submitted to the
jury. Subsequently, respondent brought a habeas corpus proceeding
in Federal District Court, which denied relief. The United States
Court of Appeals reversed, holding that respondent's plea of guilty
to the previous Illinois charge was invalid, and that its admission
into evidence at the Ohio trial rendered respondent's ensuing
murder conviction unconstitutional. The court, noting that no
express finding was made concerning respondent's credibility as a
witness, credited his testimony at the Ohio trial court hearing,
absent contrary evidence by the State.
Page 459 U. S. 423
Held: The admission in the Ohio murder trial of
respondent's Illinois conviction based upon a guilty plea did not
deprive respondent of any federal right. Pp. 430-439.
(a) Whether the Court of Appeals' reassessment of the effect of
respondent's testimony at the Ohio trial court hearing was
undertaken because of the trial court's failure to make express
findings as to respondent's credibility or whether the Court of
Appeals felt it should assess for itself the weight that such
evidence should have been accorded by the Ohio trial court, the
Court of Appeals erroneously applied the "fairly supported by the
record" standard enunciated in § 2254(d). The Court of Appeals'
reliance on respondent's testimony and the fact that the State
produced no contrary evidence are wide of the mark for purposes of
deciding whether factual findings are fairly supported by the
record. Section 2254(d) gives federal habeas courts no license to
redetermine credibility of witnesses whose demeanor has been
observed by the state trial court but not by them. Pp.
459 U. S.
432-436.
(b) Respondent must be presumed to have been informed, either by
his lawyers or at one of the Illinois presentencing proceedings, of
the charges on which he was indicted in Illinois.
Henderson v.
Morgan, 426 U. S. 637.
Applying this standard to the factual determinations arising from
the Ohio trial court proceedings which were "fairly supported by
the record" within the meaning of § 2254(d), this Court cannot
accept the Court of Appeals' conclusion that respondent's guilty
plea to the Illinois charge was not voluntary and knowing in the
constitutional meaning of those terms. Pp.
459 U. S.
436-438.
(c) Because respondent's prior conviction was valid, this case
is controlled by
Spencer v. Texas, 385 U.
S. 554, which is reaffirmed. The Due Process Clause does
not permit the federal courts to engage in a finely tuned review of
the wisdom of state evidentiary rules. The jury in respondent's
trial was instructed to consider the prior conviction only in
determining whether the specification was proved, and it is a
"crucial assumption" of the jury trial system that juries will obey
their instructions. Moreover, as recognized by the common law, any
unfairness resulting from admitting prior convictions generally is
balanced by their probative value. Pp.
459 U. S.
438-439, n. 6.
651 F.2d 447, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
459 U. S. 439.
BLACKMUN, J., filed a dissenting opinion,
post, p.
459 U. S. 447.
STEVENS, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and BLACKMUN, JJ., joined,
post, p. 447.
Page 459 U. S. 424
JUSTICE REHNQUIST delivered the opinion of the Court.
The issue here is whether the Due Process Clause of the
Fourteenth Amendment requires the vacation of respondent's Ohio
murder conviction. The United States Court of Appeals for the Sixth
Circuit, which granted respondent's petition for a writ of habeas
corpus,
Lonberger v. Jago, 635 F.2d 1189 (1980), and
Lonberger v. Jago, 651 F.2d 447 (1981), held that it did.
The Court of Appeals held that respondent's plea of guilty to a
previous Illinois felony charge, offered and admitted into evidence
at his Ohio murder trial, was invalid under
Boykin v.
Alabama, 395 U. S. 238
(1969). It went on to hold that the admission into evidence of the
Illinois conviction at the Ohio trial rendered respondent's ensuing
conviction in that proceeding unconstitutional under this Court's
decision in
Burgett v. Texas, 389 U.
S. 109 (1967). The State claims that the Court of
Appeals exceeded its authority, under our holding in
Sumner v.
Mata, 449 U. S. 539
(1981), in concluding that the prior Illinois conviction was
invalid. It also contends that, even if the Court of Appeals were
warranted in so concluding, the admission of that conviction at the
Ohio murder trial did not render the Ohio conviction
constitutionally infirm. We granted certiorari to consider,
inter alia, the interrelationship between
Boykin v.
Alabama, supra, and
Henderson v. Morgan, 426 U.
S. 637 (1976).
I
There is apparently no dispute with respect to the operative
facts which led to respondent's indictment and conviction
Page 459 U. S. 425
for the murder of Charita Lanier in Toledo, Ohio, on the evening
of January 29, 1975. Lanier was brutally murdered in the living
room of her home during that evening; blood stains led from the
living room to the kitchen, where the victim's partially clothed
body was found in a freezer. An autopsy revealed that the victim
bled to death after her throat had been slashed, and a bent,
blood-stained knife found near the scene of the crime was
identified as the murder weapon. The victim's clothing was torn and
sperm was detected in her vaginal canal.
The morning after the murder, the victim's children told police
that respondent, Robert Lonberger, had been at their home the
previous evening. After the children had been sent to their
upstairs bedroom, they heard their mother scream. When there was no
response to his questions, the older child left his bedroom and
went downstairs. The lights were out, and when the child attempted
to turn them on, respondent grabbed his hand; he ordered the child
back to bed. A pack of cigarettes of respondent's brand was found
in the house, and blood-stained articles of clothing were
discovered in his possession.
Respondent was indicted by a state grand jury on two counts of
"aggravated murder." The first count charged that respondent had
murdered Lanier with "prior calculation and design," in violation
of Ohio Rev.Code Ann. § 2903.01(A) (1975). The second count charged
respondent with murder while committing rape, in violation of Ohio
Rev.Code Ann. § 2903.01(B) (1975). [
Footnote 1] Both counts of aggravated murder included a
"specification," described below, in which the prosecution alleged
that respondent previously had been convicted of an "offense of
which the gist was the purposeful
Page 459 U. S. 426
killing of or attempt to kill another." Ohio Rev. Code Ann. §
2929.04(A)(5) (1975). [
Footnote
2]
Respondent pleaded not guilty to the charges, and the State
sought at trial to prove the specification of prior conviction for
attempt to kill by introducing the record of a conviction of
respondent in the Circuit Court of Cook County, Ill. It is the
introduction of this conviction into evidence in the Ohio murder
trial which has been the focus of constitutional objection on the
part of respondent since that time, and upon which the Court of
Appeals for the Sixth Circuit based its conclusion that
respondent's conviction was constitutionally infirm. Because of its
central role in this litigation, we find it desirable to describe
in some detail the evidence before the Ohio court relating to this
prior conviction.
It is fair to say that, from the time the State first offered
the record of the Illinois conviction until the present time, the
opposing parties have never agreed as to the historical facts
surrounding the acceptance of respondent's plea of guilty to an
indictment returned by a grand jury in the Circuit Court of Cook
County, Ill., some three years before he was tried on the Ohio
murder charge. The State offered in evidence at the Ohio trial a
copy of the grand jury indictment forming the basis for the
Illinois charge, a certified copy of an Illinois record called a
"conviction statement," and the transcript of a hearing in the
Circuit Court of Cook County occurring at the time respondent
pleaded guilty.
Page 459 U. S. 427
These documents show that respondent was indicted by the Cook
County grand jury in May, 1971, on four counts: aggravated battery
against Dorothy Maxwell, aggravated battery with a deadly weapon
against Dorothy Maxwell, intentionally and knowingly attempting to
kill Dorothy Maxwell by cutting her with a knife, and aggravated
battery against Wendtian Maxwell with a deadly weapon. The
"conviction statement," prepared and authenticated by the Circuit
Court of Cook County, recited in pertinent part that respondent was
indicted for "AGGRAVATED BATTERY, ETC.," that, on March 10, 1972,
respondent withdrew an earlier plea of not guilty and entered a
plea of guilty, and that, after the court
"fully explained to the Defendant . . . before the entry of said
PLEA OF GUILTY, the consequences of entering such PLEA OF GUILTY,
the said Defendant still persisted in his PLEA OF GUILTY in manner
and form as charged in the indictment in this cause."
App. 5. The third record offered in evidence in the Ohio
proceedings is the transcript of the colloquy at the time of
sentencing in the Circuit Court of Cook County, Ill.,
id.
at 6-15. It contains the following relevant exchanges at a time
when the sentencing judge, respondent, respondent's attorney, and
the prosecuting attorney were shown to be present in open
court:
"THE COURT: In other words, you are pleading guilty, that you
did, on August 25, 1968, commit the offense of aggravated battery
on one Dorothy Maxwell, and that you did, on the same date, attempt
on Dorothy Maxwell, with a knife, is that correct?"
"THE DEFENDANT: Yes, sir."
"THE COURT: And you did on the same date commit the offense of
aggravated battery on one Wendtian Maxwell, is that correct?"
"That is what you are pleading to, sir?"
"THE DEFENDANT: Yes, sir. "
Page 459 U. S. 428
"THE COURT: And understand by pleading guilty to this indictment
you are waiving your right to a trial by this Court or trial by
this Court and a jury?"
"THE DEFENDANT: Yes."
"
* * * *"
"THE COURT: Understand by pleading guilty, I could sentence you
from one to ten on the aggravated battery, and attempt one to
twenty. So I could sentence you to the penitentiary for a maximum
of from one to forty years."
"Understand that?"
"THE DEFENDANT: Yes, sir."
"
* * * *"
"THE COURT: What do you wish to tell me insofar as stipulation
and as far as facts concerned?"
"MR. RANDALL [prosecuting attorney]: Let it be stipulated by and
between the parties, Indictment 71-1554, it is both sufficient in
law and in fact to sustain the charges contained therein, to
sustain a finding of guilty on the charges involving Robert
Lonberger. . . ."
"MR. XINOS [respondent's attorney]: So stipulated."
Before respondent's trial on the aggravated murder charges, the
Ohio trial court conducted a hearing in limine to determine whether
respondent's guilty plea to the Illinois attempted murder charge
was voluntary. The Illinois records were offered, and respondent
took the stand and submitted himself to direct and
cross-examination primarily as to his recollection of the Illinois
proceedings which had taken place three years earlier. At the
conclusion of this hearing, the trial court made the following
findings:
"The Court finds on the evidence presented that the defendant is
an intelligent individual, well experienced in the criminal
processes and well represented at all stages of the proceedings by
competent and capable counsel in Illinois. On review of the
certified copy of the Illinois
Page 459 U. S. 429
proceedings and a transcript of the plea of guilty, the Court
finds that every effort was taken to safeguard and to protect the
constitutional rights of the defendant. Therefore, the Court finds
that the defendant intelligently and voluntarily entered his plea
of guilty in the Illinois court."
Id. at 99-100.
Evidence of respondent's Illinois conviction was admitted at his
Ohio trial, subject to an instruction that it be considered only in
connection with the specification, and not as probative of guilt on
the underlying murder count. The jury returned a verdict of guilty
on the second count of aggravated murder, one including the
specification of the prior charge of attempted murder; after a
sentencing hearing in accordance with Ohio law, the trial court
imposed a sentence of death.
Respondent's appeal to the Ohio Court of Appeals was partially
successful; that court found as a matter of state law that the
jury's finding that respondent had not only murdered Charita
Lanier, but raped her as well, did not satisfy the Ohio rule
relating to proof of crime by circumstantial evidence. App. to Pet.
for Cert. A-38. It did uphold the jury finding that respondent was
guilty of the murder of Lanier, and that the specification based on
the prior Illinois conviction was adequately proved. It reversed
the judgment imposing a death penalty, and directed imposition of a
sentence based solely on the conviction of murder. With respect to
the admissibility and evidence of the prior Illinois conviction,
the Ohio Court of Appeals said:
"The transcript from the Cook County Circuit Court proceedings
at which appellant changed his plea to guilty indicated that he was
represented by competent counsel. When questioned by the court,
appellant answered affirmatively that he was pleading guilty
to"
"the offense of aggravated battery on one Dorothy Maxwell, . . .
attempt on Dorothy Maxwell, with a knife . . . [and] the offense of
aggravated battery on Wendtian Maxwell. . . ."
"Appellant further affirmed that he understood that he
Page 459 U. S. 430
was waiving his right to trial and to confront witnesses, that
he understood the penalties that could be imposed, that he was
motivated to plead guilty by an offer of a reduced sentence, and
that he had not otherwise been threatened or promised anything.
Through his counsel, appellant stipulated that there were
sufficient facts to sustain the charges contained in the
indictment. We find from the record of this proceeding and from the
record of the pretrial hearing in the instant case that the trial
court did not err in ruling that appellant's guilty plea was
voluntarily and knowingly made, and that the evidence of the prior
conviction should be submitted to the jury."
Id. at A-42.
II
It was the record of these proceedings in the Ohio state courts
that formed the basis of respondent's application for federal
habeas in the United States District Court for the Northern
District of Ohio. The District Court denied relief, finding
that,
"from a review of the record, this Court is satisfied that an
ordinary person would have understood the nature of the charges to
which petitioner was pleading guilty."
Id. at A-31. The Court of Appeals for the Sixth Circuit
reversed the judgment of the District Court, and ordered that a
writ of habeas corpus issue.
Lonberger v. Jago, 635 F.2d
1189 (1980). We granted certiorari, vacated the judgment of the
Court of Appeals, and remanded for reconsideration in the light of
Sumner v. Mata, 449 U. S. 539
(1981).
Marshall v. Lonberger, 451 U.S. 902 (1981). On
remand, the Court of Appeals adhered to its previous decision.
Lonberger v. Jago, 651 F.2d 447 (1981). We again granted
certiorari, 454 U.S. 1141 (1982), and we now reverse the judgment
of the Court of Appeals.
The Court of Appeals, referring to its earlier opinion,
stated:
"The basis for our judgment was that Lonberger's 1972 guilty
plea to attempted murder was not demonstrably
Page 459 U. S. 431
an intelligent one, and was therefore invalid under federal
constitutional standards. This conclusion is directly contrary to
the conclusions of both of the Ohio courts that considered the
question of the validity of Lonberger's 1972 plea. We now expressly
hold that these factual determinations by the Ohio courts are not
fairly supported by the records that were before them. This we are
empowered to do by 28 U.S.C. § 2254(d)(8).
Sumner v. Mata,
supra, requires that federal courts state their rationales for
exercise of this power."
"The basis for our disagreement with the factual determinations
of the state courts can be briefly stated. The question of an
effective waiver of a federal constitutional right is governed by
federal standards.
Boykin v. Alabama, supra, 395 U.S. at
395 U. S. 243. . . . A
guilty plea, which works as a waiver of numerous constitutional
rights, cannot be truly voluntary if the defendant 'has such an
incomplete understanding of the charge that his plea cannot stand
as an intelligent admission of guilt.'
Henderson v.
Morgan, 426 U. S. 637,
426 U. S.
645 n. 13 . . . (1976).
Accord, Smith v.
O'Grady, 312 U. S. 329,
312 U. S.
334 . . . (1941)."
"The transcript of Lonberger's 1972 plea is inadequate to show
that Lonberger was aware that he was pleading guilty to a charge of
attempted murder."
651 F.2d at 449 (footnote omitted).
We entirely agree with the Court of Appeals for the Sixth
Circuit that the governing standard as to whether a plea of guilty
is voluntary for purposes of the Federal Constitution is a question
of federal law,
Henderson v. Morgan, 426 U.
S. 637 (1976);
Boykin v. Alabama, 395 U.
S. 238 (1969), and not a question of fact subject to the
requirements of 28 U.S.C. § 2254(d). But the questions of
historical fact which have dogged this case from its inception --
what the Illinois records show with respect to respondent's 1972
guilty plea, what other inferences regarding those historical facts
the Court of
Page 459 U. S. 432
Appeals for the Sixth Circuit could properly draw, and related
questions -- are obviously questions of "fact" governed by the
provisions of § 2254(d).
Section 2254(d) establishes a presumption of correctness for
"a determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in a
proceeding to which the applicant for the writ and the State or an
officer or agent thereof were parties, evidenced by a written
finding, written opinion, or other reliable and adequate written
indicia. . . ."
One of the eight exceptions to this presumption of correctness,
and the one relied upon by the Court of Appeals in this case, is
where the federal habeas court, reviewing the state court record
offered to support the factual finding, "on a consideration of such
part of the record as a whole concludes that such factual
determination is not fairly supported by the record." 28 U.S.C. §
2254(d)(8).
In its treatment of the state courts' factual findings, the
Court of Appeals failed in at least one major respect to accord
those determinations the "high measure of deference,"
Sumner v.
Mata, supra, to which they are entitled. This deference
requires that a federal habeas court more than simply disagree with
the state court before rejecting its factual determinations.
Instead, it must conclude that the state court's findings lacked
even "fair support" in the record. The Court of Appeals' treatment
of the issue of respondent's credibility failed to satisfy this
standard. Following a recital of the findings of the Ohio trial
court, the Court of Appeals for the Sixth Circuit states that "[n]o
explicit findings were made concerning Lonberger's credibility as a
witness." 651 F.2d at 448. Likewise, the Court of Appeals
wrote:
"At the pretrial hearing, Lonberger testified that he 'copped
out to aggravated battery' in 1972, but had no knowledge of other
charges. The Ohio prosecutors attempted to discredit this testimony
by introducing copies of the 1972 indictment charging Lonberger
with 'the offense of attempt.' Lonberger denied that he had
ever
Page 459 U. S. 433
seen or read this indictment. The prosecutors sought to imply by
their questioning of Lonberger that he must have heard of the
'attempt' charge either at his arraignment or in conversation with
his attorneys. Lonberger testified that he had not, and the state
produced no contrary evidence."
Id. at 449-450 (footnote omitted). Finally, the Court
of Appeals explicitly credited Lonberger's testimony in a footnote
rejecting the State's reliance on
Henderson v. Morgan,
supra. 651 F.2d at 450, n. 3.
We are unsure whether the Court of Appeals' reassessment of the
effect of respondent's testimony at the Ohio state trial court
hearing was undertaken because of the failure of the trial court to
make express findings as to respondent's credibility, or whether
the Court of Appeals for the Sixth Circuit felt that it should
assess for itself the weight that such evidence should have been
accorded by the state trial court. In either event, we hold that it
erroneously applied the "fairly supported by the record" standard
enunciated in 28 U.S.C. § 2254(d).
In
LaVallee v. Delle Rose, 410 U.
S. 690 (1973), we dealt with a state court hearing in
which the trial judge likewise failed to make express findings as
to the defendant's credibility. We held that, because it was clear
under the applicable federal law that the trial court would have
granted the relief sought by the defendant had it believed the
defendant's testimony, its failure to grant relief was tantamount
to an express finding against the credibility of the defendant. We
think the same is true in the present case. The assumption referred
to in
Townsend v. Sain, 372 U. S. 293,
372 U. S.
314-315 (1963), quoted in
LaVallee v. Delle Rose,
supra, at
410 U. S. 694,
"that the state trier of fact applied correct standards of federal
law to the facts . . ." leads inevitably to a similar conclusion
here. Had the Ohio trial court credited respondent's insistence
that he had only been advised of or been aware of the battery
charge at the time he pleaded guilty in Illinois, the Ohio trial
court would have surely refused to allow the record of the Illinois
conviction in evidence to prove the specification of
Page 459 U. S. 434
attempted murder. The trial court's ruling allowing the record
of conviction to be admitted in evidence in support of the
specification is tantamount to a refusal to believe the testimony
of respondent. [
Footnote 3]
The Court of Appeals' reliance on respondent's testimony,
discussed above, and the fact that "the state produced no contrary
evidence," are quite wide of the mark for purposes of deciding
whether factual findings are fairly supported by the record. Title
28 U.S.C. § 2254(d) gives federal habeas courts no license to
redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them. In
United
States v. Oregon Medical Society, 343 U.
S. 326 (1952), commenting on the deference which this
Court gave to the findings of a District Court on direct appeal
from a judgment in a bench trial, we stated:
"As was aptly stated by the New York Court of Appeals, although
in a case of a rather different substantive nature:"
"Face to face with living witnesses, the original trier of the
facts holds a position of advantage from which appellate judges are
excluded. In doubtful cases, the exercise of his power of
observation often proves the most accurate method of ascertaining
the truth. . . . How can we say the judge is wrong? We never saw
the witnesses. . . . To the sophistication and sagacity of the
trial judge, the law confides the duty of appraisal."
"
Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632,
634."
Id. at
343 U. S.
339.
We greatly doubt that Congress, when it used the language
"fairly supported by the record" considered "as a
Page 459 U. S. 435
whole" intended to authorize broader federal review of state
court credibility determinations than are authorized in appeals
within the federal system itself. While disbelief of respondent's
testimony may not form the basis for any affirmative findings by
the state trial court on issues with respect to which the State
bore the burden of proof, it certainly negates any inferences
favorable to respondent such as those drawn by the Court of
Appeals, based on his testimony before the Ohio trial court.
Thus, the factual conclusions which the federal habeas courts
were bound to respect in assessing respondent's constitutional
claims were the contents of the Illinois court records, the finding
of the Ohio trial court that respondent was
"an intelligent individual, well experienced in the criminal
processes and well represented at all stages of the proceedings by
competent and capable counsel in Illinois,"
supra at
459 U. S. 428,
and the similar conclusion of the Ohio Court of Appeals, and the
inferences fairly deducible from these facts. [
Footnote 4] These records and findings show, with
respect to the attempted murder charge, that it was one of the four
counts contained in the Cook County indictment returned against
respondent. The "conviction certificate" recites that, at the time
respondent pleaded guilty, he was duly advised by the court of the
consequences of pleading guilty, and nonetheless adhered to his
plea. The transcript, as appears from its face and as found by the
Ohio Court of Appeals, shows that respondent answered affirmatively
that he was pleading guilty,
inter alia, to the offense of
"attempt on Dorothy Maxwell, with a knife. . . ." Respondent's
attorney, in his presence,
Page 459 U. S. 436
stipulated that the indictment was "both sufficient in law and
in fact to sustain the charges contained therein, to sustain a
finding of guilty on the charges involving [respondent]."
Ibid. There is perhaps an arguable conflict between the
recitation of the "conviction certificate" and the transcript by
reason of the latter's omission of the word "murder" after the word
"attempt" in the colloquy between respondent and the court. For our
purposes, we assume that the transcript version, which is more
favorable to respondent, was accurate.
It is well established that a plea of guilty cannot be voluntary
in the sense that it constitutes an intelligent admission that the
accused committed the offense unless the accused has received "real
notice of the true nature of the charge against him, the first and
most universally recognized requirement of due process."
Smith
v. O'Grady, 312 U. S. 329,
312 U. S. 334
(1941), quoted in
Henderson v. Morgan, 426 U.S. at
426 U. S. 645.
In
Henderson v. Morgan, we went on to make the following
observations:
"Normally the record contains either an explanation of the
charge by the trial judge, or at least a representation by defense
counsel that the nature of the offense has been explained to the
accused. Moreover, even without such an express representation, it
may be appropriate to presume that, in most cases defense, counsel
routinely explain the nature of the offense in sufficient detail to
give the accused notice of what he is being asked to admit."
Id. at
426 U. S. 647.
Applying this standard [
Footnote
5] to the factual determinations arising from the state court
proceedings which were "fairly supported
Page 459 U. S. 437
by the record" within the meaning of 28 U.S.C. § 2254(d), we
disagree with the Court of Appeals for the Sixth Circuit in its
conclusion that respondent's plea to the Illinois charge was not
"voluntary" in the constitutional meaning of that term. We think
that the application of the principles enunciated in
Henderson
v. Morgan, supra, lead inexorably to the conclusion that the
plea
was voluntary. We think a person of respondent's
intelligence and experience in the criminal justice system would
have understood, from the statements made at the sentencing hearing
recorded in the transcript before us, that the presiding judge was
inquiring whether the defendant pleaded guilty to offenses charged
in the indictment against him. This is evident from the references
in the proceeding by the judge to the fact the respondent was
"pleading guilty to this indictment," and by respondent's counsel's
stipulation that the indictment sustained the plea of guilty.
Supra at
459 U. S.
427-428. Under
Henderson, respondent must be
presumed to have been informed, either by his lawyers or at one of
the presentencing proceedings, of the charges on which he was
indicted. Given this knowledge of the indictment and the fact that
the indictment
Page 459 U. S. 438
contained no other attempt charges, respondent could only have
understood the judge's reference to "attempt on Dorothy Maxwell,
with a knife" as a reference to the indictment's charge of attempt
to kill. It follows, therefore, both that respondent's argument
that his plea of guilty was not made knowingly must fail and that
the admission in the Ohio murder trial of the conviction based on
that plea deprived respondent of no federal right.
Spencer v.
Texas, 385 U. S. 554
(1967). [
Footnote 6] The
judgment of the Court of Appeals is accordingly
Reversed.
Page 459 U. S. 439
[
Footnote 1]
Both the first and the second counts of aggravated murder, and
the accompanying specifications, were submitted to the jury. No
verdict was returned as to the first count or the specification
accompanying that charge, and neither is relevant to our
decision.
[
Footnote 2]
Under the Ohio statute, the death sentence could be imposed only
for the crime of aggravated murder, Ohio Rev.Code Ann. §2929.03
(1975). Even as to aggravated murder, the prosecution was required
separately to allege a specification and prove beyond a reasonable
doubt the aggravating circumstance contained in the specification,
§2929.03(C). If the jury found the defendant guilty of both
aggravated murder and the specification, then the trial judge was
required to hold a sentencing hearing where the defendant could
show mitigating circumstances, §§2929.03(D) and 2929.04. If no
mitigating circumstances were found, the judge was required to
impose the death sentence; a mandatory life sentence applied if
mitigating circumstances were shown.
[
Footnote 3]
The likelihood that the state trial court would have reached
such a conclusion is not diminished by the facts before us. T he
state courts found that respondent was represented by two lawyers
who were competent and capable, and the record suggests that one of
the two was a nationally respected public defender; either of them
might well have informed respondent of the charges contained in the
indictment against him. Moreover, respondent appeared in several
court proceedings in connection with his attack on Dorothy Maxwell,
at any one of which the indictment could have been read to him.
[
Footnote 4]
The method by which court records from one State are to be
authenticated and proved in the courts of a second State, the
weight to be given those records, and the extent to which they may
be impeached by later oral testimony, are all matters generally
left to the laws of the States. A State
"is free to regulate the procedure of its courts in accordance
with its own conception of policy and fairness unless, in so doing,
it offends some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental."
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 105
(1934).
[
Footnote 5]
The Sixth Circuit sought to distinguish
Henderson on
several grounds, none of which withstands analysis. First, it
relied on "Lonberger's testimony that his lawyers did not discuss
the charge of
attempt' with him." This, however, requires
rejection of the state courts' necessary conclusions as to
Lonberger's testimony, which the federal habeas court was
unjustified in doing. Supra at 459 U. S.
433-434. In addition, the Court of Appeals thought that
the fact that respondent had changed lawyers following the return
of the grand jury indictment somehow made it less likely that the
presumption would operate. The mere fact of a change in
representation, if it has any probative value, would suggest to us
that it was even more likely than usual that one of the two lawyers
informed respondent of the contents of the indictment. The Court of
Appeals also relied on what it thought was a vague description of
the attempt-to-kill offense in the indictment and the sentencing
proceedings. We cannot agree with the Court of Appeals' apparent
implication that the indictment failed to provide respondent's
counsel with sufficient information to enable them to describe to
him the charges he faced: indeed, counsel stipulated that the
indictment was "sufficient in law and fact" to sustain the charges
against respondent. Finally, the Court of Appeals thought
it
"questionable whether [the
Henderson presumption] is
proper in a case . . . in which a prior conviction forms an
essential element of a later crime."
Whatever may be the case otherwise, there is surely no obstacle
to use of the presumption in a case such as this, when the
defendant is challenging a conviction which does not have a prior
conviction as an element.
[
Footnote 6]
In
Spencer, which we reaffirm, the Court upheld a
conviction despite the introduction at the guilt-determination
stage of trial of a defendant's prior conviction for purposes of
sentence enhancement. Central to our decision was the fact that the
Due Process Clause does not permit the federal courts to engage in
a finely tuned review of the wisdom of state evidentiary rules:
"It has never been thought that [decisions under the Due Process
Clause] establish this Court as a rulemaking organ for the
promulgation of state rules of criminal procedure."
385 U.S. at
385 U. S. 564.
Applying these principles, we observed that the Texas procedural
rules permitting introduction of the defendant's prior conviction
did not pose a sufficient danger of unfairness to the defendant to
offend the Due Process Clause, in part because such evidence was
accompanied by instructions limiting the jury's use of the
conviction to sentence enhancement. This analysis remains
persuasive; as recognized in
Parker v. Randolph,
442 U. S. 62,
442 U. S. 73
(1979) (REHNQUIST, J.), the "crucial assumption" underlying the
system of trial by jury
"is that juries will follow the instructions given them by the
trial judge. Were this not so, it would be pointless for a trial
court to instruct a jury, and even more pointless for an appellate
court to reverse a criminal conviction because the jury was
improperly instructed."
Cf. Sandstrom v. Montana, 442 U.
S. 510 (1979).
Spencer also observed that, in
cases where documentary evidence is used to prove the prior crime,
the evidence seldom, if ever, will be so inflammatory or
"devastating,"
Parker v. Randolph, supra, at
442 U. S. 74-75,
that the jury will be unable to follow its instructions.
See,
e.g., Bruton v. United States, 391 U.
S. 123 (1968). And, of course, if the jury considers a
defendant's prior conviction only for purposes of sentence
enhancement, no questions of fairness arise.
JUSTICE STEVENS' dissent appears to rest on a view that the
common law regarded the admission of prior convictions as grossly
unfair and subject to some sort of blanket prohibition. In fact,
the common law was far more ambivalent.
See, e.g., Stone,
Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988
(1938). Alongside the general principle that prior convictions are
inadmissible, despite their relevance to guilt, 1 J. Wigmore,
Evidence § 194 (3d ed. 1940), the common law developed broad,
vaguely defined exceptions -- such as proof of intent, identity,
malice, motive, and plan -- whose application is left largely to
the discretion of the trial judge,
see Spencer v. Texas,
385 U.S. at
385 U. S.
560-561. In short, the common law, like our decision in
Spencer, implicitly recognized that any unfairness
resulting from admitting prior convictions was, more often than
not, balanced by its probative value, and permitted the prosecution
to introduce such evidence without demanding any particularly
strong justification.
Here, as in
Spencer, the trial judge gave a careful and
sound instruction requiring the jury to consider respondent's prior
conviction only for purposes of the specification. The extent to
which the jury can and does consider limiting instructions, or for
that matter any instructions, has been fully considered in cases
such as
Spencer, supra, Bruton, supra, Parker, supra, and
Burgett v. Texas, 389 U. S. 109
(1967). The matter was put to rest for cases such as this by our
decision in
Spencer, supra, in which the Court quoted the
remark of Justice Cardozo in
Snyder v. Massachusetts, 291
U.S. at
291 U. S. 105,
that a state rule of law
"does not run foul of the Fourteenth Amendment because another
method may seem to our thinking to be fairer or wiser or to give a
surer promise of protection to the prisoner at the bar."
Remarking on the state of the law of evidence with respect to
reputation in criminal cases, the Court in
Michelson v. United
States, 335 U. S. 469,
335 U. S. 486
(1948), said:
"We concur in the general opinion of the courts, textwriters,
and the profession that much of this law is archaic, paradoxical
and full of compromises and compensations by which an irrational
advantage to one side is offset by a poorly reasoned
counterprivilege to the other. But somehow it has proved a workable
even if clumsy system when moderated by discretionary controls in
the hands of a wise and strong trial court. To pull one misshapen
stone out of the grotesque structure is more likely simply to upset
its present balance between adverse interests than to establish a
rational edifice."
If this Court was thus willing to defer to "accumulated judicial
experience" at the expense of "abstract logic,"
id. at
335 U. S. 487,
in a case such as
Michelson, which arose in the federal
court system, the Due Process Clause as construed in
Spencer surely cannot require a State to do more.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
I join JUSTICE STEVENS' dissent. I write separately only to
emphasize that more is subject to question in the Court's
Page 459 U. S. 440
opinion than its penultimate sentence.
See ante at
459 U. S. 438,
and n. 6.
I
The bulk of the Court's opinion is devoted not to defending
Spencer v. Texas, 385 U. S. 554
(1967), but rather to establishing that this case is not governed
on all fours by
Burgett v. Texas, 389 U.
S. 109 (1967).
Burgett held, notwithstanding
Spencer, that it was inherently prejudicial to admit an
unconstitutional, uncounseled prior conviction against a defendant
at a trial on a new offense, regardless of the purpose for which it
had been introduced or of any limiting instructions given to the
jury. 389 U.S. at
389 U. S. 115.
[
Footnote 2/1]
The proceedings below concerned themselves exclusively with the
question whether respondent's 1972 conviction for attempted murder
in Illinois was the type of conviction which, under
Burgett, could not have been admitted against him in the
later Ohio trial for any purpose, regardless of the curative
instructions or procedural protections Ohio might
Page 459 U. S. 441
have adopted. The Court of Appeals for the Sixth Circuit granted
respondent's habeas petition solely on the ground that the Illinois
conviction admitted in evidence at his Ohio trial had been obtained
unconstitutionally, because respondent had entered a guilty plea
without notice that he was pleading guilty to an attempted murder
charge as well as an aggravated battery charge. A defendant's
failure to receive notice of the charge to which he pleads guilty
renders his plea invalid, and a conviction based upon it
unconstitutional.
See Henderson v. Morgan, 426 U.
S. 637 (1976);
Boykin v. Alabama, 395 U.
S. 238 (1969). The conviction is also completely
unreliable, since it rests entirely on a guilty plea that cannot be
taken as an admission that the defendant indeed committed the
elements of the offense. So if the Court of Appeals for the Sixth
Circuit was right about respondent's failure to receive notice in
Illinois, the conviction should not have been admitted into
evidence in Ohio, his Ohio conviction was invalid under
Burgett, and the court properly granted his habeas corpus
petition.
II
Both JUSTICE REHNQUIST's opinion for the Court,
ante at
459 U. S.
426-430, and JUSTICE STEVENS' dissent,
post at
459 U. S. 457,
show why the factual correctness of the Court of Appeals for the
Sixth Circuit's conclusion as to notice is a close question. The
records of respondent's guilty plea and conviction in Illinois
leave the matter in considerable doubt. The formal statement of
conviction preserved in Illinois records states only that
respondent was found guilty of "AGGRAVATED BATTERY, ETC." App. 5.
The transcript of respondent's guilty plea proceedings shows that
the trial judge asked him to admit,
"that you did on August 25, 1968, commit the offense of
aggravated battery on one Dorothy Maxwell, and that you did on the
same date attempt on Dorothy Maxwell, with a knife,"
and he answered, "Yes, sir."
Id. at 8. The judge also
mentioned the possible sentence for "attempt."
Id. at 9.
In the absence of more, neither of these records
Page 459 U. S. 442
clearly establishes that respondent had notice that he was
pleading guilty to attempted murder as well as aggravated battery.
On the other hand, respondent was represented by competent counsel
in Illinois, and he was arraigned on an indictment that clearly
charged him with attempted murder.
The Court resolves this tension on the basis of rules of law
derived from
Sumner v. Mata, 449 U.
S. 539 (1981), and on dictum in
Henderson v. Morgan,
supra. Henderson states that in cases such as this,
where the record does not clearly show that the defendant received
notice,
"it may be appropriate to presume that, in most cases, defense
counsel routinely explain the nature of the offense in sufficient
detail to give the accused notice of what he is being asked to
admit."
Id. at
426 U. S. 647.
The Court thus holds:
"Under
Henderson, respondent must be presumed to have
been informed, either by his lawyers or at one of the presentencing
proceedings, of the charges on which he was indicted. Given this
knowledge of the indictment and the fact that the indictment
contained no other attempt charges, respondent could only have
understood the judge's reference to 'attempt on Dorothy Maxwell,
with a knife' as a reference to the indictment's charge of attempt
to kill."
Ante at
459 U. S.
437-438.
Under
Sumner v. Mata, supra, and 28 U.S.C. § 2254(d)
(8), the Court of Appeals for the Sixth Circuit may have been
required to accept the inference that respondent was informed of
the charges against him, if it was drawn by the Ohio Court of
Appeals, as fairly supported by the record. [
Footnote 2/2]
Page 459 U. S. 443
But, assuming the Ohio court drew such an inference (it did not
say so), the inference fails to resolve this case. Both
respondent's testimony and the applicable law establish that,
although he may have known he had been
charged with
attempted murder, it does not necessarily follow that he knew he
was
pleading guilty to attempted murder.
Testifying at a pretrial hearing in Ohio, respondent claimed
that he was told of a plea bargain whereby he would plead guilty
only to aggravated battery, and be sentenced accordingly. He
testified that his Illinois lawyer told him
"[t]hat he had talked it over with the State's attorney and that
again we would go out and the judge would say a lot of things, but
it was just for the record's sake, and that we was copping out to
aggravated battery from two to four, that was the agreement."
App. 24;
cf. id. at 84-85. It is hard to judge
respondent's credibility on a cold record, but this statement is
hardly incredible on its face. The State made no effort to impeach
it, unlike respondent's claim that he was never told he had been
charged with attempted murder,
see id. at 27-75, and the
Ohio Court of Appeals did not address it,
see App. to Pet.
for Cert. A-40 - A-42;
ante at
459 U. S.
429-430. Apart from the Illinois trial judge's ambiguous
reference to "attempt . . . with a knife," nothing at respondent's
guilty plea proceeding would have informed him that he was doing
more than going forward with the deal that had been proposed to
him. He was sentenced to two to four years in prison -- two years
is the minimum sentence for aggravated battery [
Footnote 2/3] -- and his conviction
Page 459 U. S. 444
statement specified no crime but "AGGRAVATED BATTERY."
More importantly, respondent's understanding that he was
pleading guilty only to aggravated battery was perfectly
reasonable, despite the judge's mention of "attempt." Since at
least 1958, Illinois has had a state statutory and constitutional
rule forbidding convictions -- not merely punishments -- for two
offenses based on a single act.
See People v.
King, 66 Ill. 2d
551, 560-566,
363 N.E.2d
838, 842-843 (1977) (discussing development of Illinois law);
Illinois Criminal Code of 1961, § 1-7(m) (current version at
Ill.Rev.Stat., ch. 38, � 1005-8-4(a) (1979)). This rule has been
applied several times to vacate one conviction when a defendant, in
a single trial, has been convicted of both aggravated battery and
attempted murder resulting from the same act. [
Footnote 2/4]
E.g., People ex rel. Walker v.
Pate, 53 Ill. 2d
485,
292 N.E.2d
387 (1973);
People v. Carter, 21 Ill.App.3d 207, 315
N.E.2d 47 (1974);
People v. Peery, 81 Ill.App.2d 372, 377,
225 N.E.2d 730, 732 (1967).
Under Illinois law, therefore, respondent could not have been
convicted of both "aggravated battery" and "etc." if the "etc."
referred to the attempted murder of Dorothy Maxwell. Upon hearing
the reference to "attempt . . . with a knife," respondent would
have been warranted in thinking that the
Page 459 U. S. 445
judge was indulging in a lawyer's well-known penchant for
redundancy.
The Court of Appeals for the Sixth Circuit held that the
transcript of respondent's Illinois guilty plea was inadequate to
show that he was aware that he was pleading guilty to attempted
murder as well as aggravated battery. The Ohio Court of Appeals
reached a different conclusion about the same transcript. But in
finding that respondent had made a knowing and intelligent plea,
the Ohio court relied completely on the facts that respondent
answered "Yes" to the question described above, that he stated that
he understood he was waiving his right to trial, and that his
lawyers stipulated that there were sufficient facts to prove the
charges in the indictment. App. to Pet. for Cert. A-42;
see
ante at
459 U. S.
429-430. The Court of Appeals for the Sixth Circuit's
result is perfectly consistent with
Sumner's "presumption
of correctness,"
see 449 U.S. at
449 U. S.
550-551, because the Ohio Court of Appeals' findings,
read in light of Illinois law or of respondent's unimpeached
testimony in the Ohio trial court, fall short of establishing that
respondent knew that he was pleading guilty to attempted
murder.
This Court now slips a new rationale beneath the flawed
determination of the Ohio court. It holds that respondent's guilty
plea must have been valid if, at some point, under
Henderson, it is likely that he learned of all the charges
against him. [
Footnote 2/5] Like
the Ohio court, however, this Court fails to explain its leap from
notice of the charges to notice of which charges were included in
the guilty plea. It makes no sense whatsoever to maintain that
Henderson required the Court
Page 459 U. S. 446
of Appeals for the Sixth Circuit to accept an inference that
respondent's counsel had explained all the charges against him, but
at the same time to ignore the likelihood that his lawyer also told
him that he could not be convicted of both aggravated battery and
attempted murder. As a factual matter, respondent's lawyer may or
may not have explained the state conviction rule to him. But the
Court is left with a rule of law that makes sense only if
respondent was ignorant of settled state law, for only then would
the trial judge's brief reference to "attempt" seem anything but
absurd.
III
A simple, but unanswerable question of fact and a simple
question of law are central to this case. Did respondent have
actual knowledge that he was pleading guilty to attempted murder as
well as aggravated battery in 1972? At this point, more than 10
years later and in the face of an ambiguous record, no factfinder
could be completely certain that a particular answer is correct. So
the crucial question becomes what makes an ambiguous record
sufficient to support a state court's finding that a plea was
knowing, voluntary, and intelligent. Under
Henderson, mere
absence of a recitation of all the charges at a guilty plea hearing
may not be enough to render a plea unconstitutional, but, in this
case, respondent had good reason to believe he was pleading guilty
only to aggravated battery.
By dismissing part of the record, failing to confront the
difference between notice of charges and notice of the charges to
which one is pleading guilty, and disregarding the law of Illinois,
the Court manages to fit this case within a rule of law that
permits it to reverse the judgment below. And to what end this
Procrustean effort? To uphold the great principle that the unique
record before us was not so ambiguous as to forbid an inference
that at some point respondent may have known what the charges
against him were? To reaffirm that a conviction obtained under such
circumstances is not so fundamentally
Page 459 U. S. 447
unsound as to bar a zealous prosecutor from introducing it into
evidence in some later prosecution, for (as JUSTICE STEVENS and
JUSTICE BLACKMUN show) no good reason at all? To relieve Ohio of
the burden of a single retrial? I question that this case was
"cert-worthy." The game hardly seems worth the candle.
[
Footnote 2/1]
Whether or not
Spencer may still be read as broadly as
it was written, the two cases are reconcilable.
Spencer
took a balancing approach to interpreting the requirements of the
Fourteenth Amendment's Due Process Clause and held only that the
risk of prejudice alone from admitting a valid prior conviction --
provided the jury was given proper limiting instructions -- did not
necessarily outweigh the legitimate benefits the State might derive
from the procedures that required admitting the conviction.
See 385 U.S. at
385 U. S.
562-563.
Spencer expressly distinguished
situations in which admission of the prior conviction, in addition
to exposing the defendant to a risk of prejudice, might compromise
a specific federal right.
Id. at
385 U. S.
564-565.
Burgett recognized that admitting
unconstitutional prior convictions did compromise vital federal
rights. Furthermore, the conviction admitted into evidence in
Burgett was not merely unconstitutional, it was also
unreliable evidence that the defendant had in fact committed the
prior offense, because the defendant had not had the benefit of the
advice of counsel. These additional elements of unconstitutionality
and unreliability tip the delicate balance struck by
Spencer. Thus,
Burgett unquestionably states good
law: where a defendant's prior conviction is unconstitutional or
unreliable, it may not be introduced in evidence against that
defendant for any purpose.
[
Footnote 2/2]
In the absence of proof to the contrary,
Henderson does
support a presumption that respondent's Illinois counsel informed
him at some point of the charges against him. In this case,
however, respondent submitted proof to the contrary -- he testified
at length that he had never been told, by his lawyer or by the
court, that he was being charged with attempted murder.
See App. 24-25, 85-94 (transcript of hearing before Ohio
trial court). Under the normal rule applying in federal courts, a
judge-made "presumption" does no more than require the opposing
party to go forward with evidence to rebut or meet it.
See
Fed.Rule Evid. 301; H.R.Conf.Rep. No. 93-1597, pp. 5-6 (1974). Even
if the State had rebutted respondent's testimony -- and it did not
-- respondent's showing clearly sufficed to meet any presumption
created by
Henderson. At most, then,
Henderson's
effect on this case was to create a permissible inference that
respondent had been informed of the charges against him.
[
Footnote 2/3]
See Ill.Rev.Stat., ch. 38, �� 12-4(e), 1005-8-1(6)
(1979). At the time respondent was sentenced in Illinois, it was
not clear whether there was any minimum sentence for attempted
murder.
See People v. Moore, 69 Ill.
2d 520,
372 N.E.2d
666 (1978);
People v. Jones, 55 Ill.App.3d 446, 455,
370 N.E.2d 1142, 1149 (1977). Since then, the Illinois Legislature
has imposed a 6-year minimum.
See Ill.Rev.Stat., ch. 38,
�� 8-4(c)(1), 1005-8-1(3) (1979).
[
Footnote 2/4]
The Illinois indictment establishes that respondent's aggravated
battery charge rested on precisely the same facts as his attempted
murder charge:
"[O]n August 25th, 1968, . . . Robert Lonberger committed the
offense of aggravated battery, in that he, in committing a battery
on Dorothy Maxwell, used a deadly weapon. . . . "
"[O]n August 25th, 1968, . . . Robert Lonberger committed the
offense of attempt, in that he, with intent to commit the offense
of murder, intentionally and knowingly attempted to kill Dorothy
Maxwell by cutting Dorothy Maxwell with a knife without lawful
justification. . . ."
App. 2-3.
[
Footnote 2/5]
This holding is obviously limited by
Henderson itself,
which makes clear that a habeas petitioner is free to introduce
evidence rebutting the inference the Court draws in this case, and
courts are free to believe that evidence.
See 426 U.S. at
426 U. S. 647.
Furthermore, if there is enough evidence in the record indicating
that the
Henderson inference cannot be drawn, or that,
even if it can be drawn, other factors indicate that the plea may
not have been made with knowledge, then any state court's reliance
on
Henderson would not be fairly supported by the
record.
JUSTICE BLACKMUN, dissenting.
I join JUSTICE STEVENS' dissenting opinion, for I, too, would
affirm the judgment of the United States Court of Appeals for the
Sixth Circuit. It is enough for me in this case to note the utter
absence of a legitimate state interest once the prosecution refused
to accept respondent's proffered stipulation. That refusal revealed
that the prosecution believed the indictment had prejudicial value,
and it rendered nonexistent any otherwise legitimate interest the
State might have had in introducing the indictment.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE BLACKMUN join, dissenting.
Criminal prosecution involves two determinations: whether the
defendant is guilty or innocent, and what the appropriate
punishment should be if he is guilty. In most cases, these
determinations are made in two stages. At the first stage, strict
rules of procedure govern the order in which evidence is offered,
the quality of the evidence that may be admitted, and the burden of
proof that is required to establish the defendant's guilt. At the
second stage, however, the rules are relaxed; a wide range of
evidence concerning the defendant's character may be received by
the sentencing authority even though it is entirely extraneous to
the particular offense that has just been proved.
This case involves the unfairness that may result from an
attempt to merge the two stages. At issue is a highly prejudicial
item of evidence: an Illinois indictment charging that, in 1968,
the respondent had "intentionally and knowingly attempted
Page 459 U. S. 448
to kill Dorothy Maxwell by cutting Dorothy Maxwell with a knife
without lawful justification." Everyone agrees that this evidence
could not be used to prove the respondent's guilt in this case,
which concerned a 1975 murder in Ohio. [
Footnote 3/1] On the other hand, if the respondent were
found guilty of the Ohio murder, the evidence was certainly
relevant to whether
Page 459 U. S. 449
he should be given the death penalty. [
Footnote 3/2] The reason this case is before us today is
that the Ohio trial court allowed the prosecutor to present the
evidence to the jury before it decided whether the respondent was
guilty of the 1975 crime.
The Court finds no constitutional objection to this procedure,
because it is satisfied that the evidence could legitimately be
used in determining the appropriate penalty and because the jury
was instructed not to consider the evidence as probative of the
respondent's guilt. In my opinion, the constitutional question is
more difficult than the Court acknowledges. It requires, I believe,
a re-examination of this Court's decision in
Spencer v.
Texas, 385 U. S. 554
(1967), as well as more attention to the prosecutorial tactics
disclosed by this record.
I
The structure for constitutional analysis in this area was
established in 1967, when this Court twice considered the
constitutionality of convictions under the Texas recidivist
statute. Under the Texas procedure, the prosecutor was allowed to
offer evidence of the defendant's guilt and evidence of his prior
criminal record in a single proceeding, so long as the jury was
instructed that the defendant's past convictions were not to be
taken into account in assessing his guilt or innocence under the
current indictment.
In
Spencer v. Texas, a bare majority of the Court
concluded that such a procedure did not "fall below the minimum
level the Fourteenth Amendment will tolerate."
Id. at
385 U. S. 569
(Stewart, J., concurring). The Court acknowledged
Page 459 U. S. 450
that prior-crimes evidence "is generally recognized to have
potentiality for prejudice."
Id. at
385 U. S. 560.
Nevertheless, it held that this potentiality did not distinguish
recidivist trials from other criminal trials in which prior-crimes
evidence was admissible.
The majority noted that, under the rule of
Delli Paoli v.
United States, 352 U. S. 232
(1957), a hearsay statement that was inadmissible against a
defendant could nevertheless be introduced into evidence when the
defendant was being tried jointly with the declarant, provided that
the jury was instructed not to consider the statement in evaluating
the defendant's guilt. The Court observed that, under
Delli
Paoli,
"all joint trials, whether of several codefendants or of one
defendant charged with multiple offenses, furnish inherent
opportunities for unfairness when evidence submitted as to one
crime (on which there may be an acquittal) may influence the jury
as to a totally different charge."
385 U.S. at
385 U. S. 562.
This unfairness was deemed acceptable for two reasons:
"(1) the jury is expected to follow instructions in limiting
this evidence to its proper function, and (2) the convenience of
trying different crimes against the same person, and connected
crimes against different defendants, in the same trial is a valid
governmental interest."
Ibid. . The Court conceded that the use of prior-crimes
evidence in a one-stage recidivist trial may be thought to
represent "a less cogent state interest" than the state interest
promoted by
Delli Paoli. 385 U.S. at
385 U. S. 563.
Nevertheless, it held that this distinction should not lead to a
different constitutional result.
Ibid.
Two cases decided within 18 months of
Spencer called
its analytic structure into question.
Burgett v. Texas,
389 U. S. 109
(1967), also involved a conviction under the Texas
Page 459 U. S. 451
recidivist statute in which the jury had been instructed "not to
consider the prior offenses for any purpose whatsoever in arriving
at the verdict."
Id. at
389 U. S. 113
(footnote omitted). In
Burgett, the record did not
affirmatively show that the petitioner had been represented by
counsel at his earlier trial. Over the dissent of three Members of
the
Spencer majority, [
Footnote 3/3] the Court reversed the conviction. The
Court reasoned that the earlier conviction was "presumptively
void," that the admission of such a conviction was
"inherently prejudicial, and we are unable to say that the
instructions to disregard it made the constitutional error
'harmless beyond a reasonable doubt' within the meaning of
Chapman v. California, 386 U. S. 18."
389 U.S. at
389 U. S. 115.
In a footnote, the Court unequivocally rejected the notion that a
jury could be expected to follow instructions to disregard
prejudicial evidence of this character. The Court stated:
"What Mr. Justice Jackson said in
Krulewitch v. United
States, 336 U. S. 440,
336 U. S.
445,
336 U. S. 453 (concurring
opinion), in the sensitive area of conspiracy is equally applicable
in the sensitive area of repetitive crimes:"
"The naive assumption that prejudicial effects can be overcome
by instructions to the jury . . . all practicing lawyers know to be
unmitigated fiction."
Id. at
389 U. S. 115,
n. 7. [
Footnote 3/4]
Page 459 U. S. 452
Later in the same Term, the Court decided
Bruton v. United
States, 391 U. S. 123
(1968). Over the dissent of two Members of the
Spencer
majority, [
Footnote 3/5] the Court
expressly overruled
Delli Paoli. 391 U.S. at
391 U. S. 126.
As in
Burgett, the Court stressed that a jury instruction
is simply inadequate to ensure that a jury will disregard highly
prejudicial evidence. Once again, the Court relied on Justice
Jackson's
Krulewitch opinion. 391 U.S. at
391 U. S. 129.
[
Footnote 3/6] Justice Stewart
concurred,
Page 459 U. S. 453
noting that certain kinds of evidence
"are at once so damaging, so suspect, and yet so difficult to
discount, that jurors cannot be trusted to give such evidence the
minimal weight it logically deserves,
whatever
instructions the trial judge might give."
Id. at 138 (emphasis in original).
The opinions in
Burgett and
Bruton demolished
one of the two pillars that had supported the holding in
Spencer. After
Burgett and
Bruton, it
was plainly no longer appropriate to presume that a jury will
ignore prejudicial evidence presented to it, even if the court
tells it to do so. Moreover, given
Spencer's suggestion
that the State's interest in holding a one-stage sentence
enhancement proceeding may be "less cogent" than the state interest
promoted in
Delli Paoli, the other pillar was shaky, at
best. The case before the Court today requires us to consider what
is left of that other pillar. More concretely, the question before
us is whether the unfair prejudice that Ohio imposed on the
respondent is justified by any valid state interest in prosecuting
him in the manner it chose to employ.
II
Under Ohio law, a person convicted of murder may not be
sentenced to death unless (a) the murder was "aggravated," Ohio
Rev.Code Ann. § 2929.03 (1975), (b) a "specification" is included
in the indictment, § 2929.04(A), and (c) the "specification" is
proved beyond a reasonable doubt,
ibid. In this
Page 459 U. S. 454
case, the murder was alleged to have been "aggravated" because
it was committed during a rape. And the indictment included, by way
of "specification," an allegation that the respondent had
previously been convicted of attempted murder in Illinois.
Before trial, the respondent moved to dismiss the specification,
citing
Burgett and arguing that the prior conviction was
void because it had been based on an involuntary guilty plea. At a
hearing on that motion, the State produced the Illinois indictment,
the transcript of the Illinois proceedings, and the Illinois
"conviction statement." It argued that the respondent must have
known he was pleading guilty to attempted murder, even though the
indictment was never read to him, the words "attempted murder" were
never mentioned at the hearing, he was never told that he was
pleading guilty to everything alleged in the indictment, he was
sentenced to only two to four years of imprisonment, and the
conviction statement showed only a conviction for "AGGRAVATED
BATTERY, ETC." The Ohio trial judge found that the respondent had
knowingly and voluntarily pleaded guilty to attempted murder.
At trial, the prosecutor sought to introduce the conviction
statement and the indictment to prove the specification. The
respondent moved for a bifurcated trial in order to prevent the
jury from receiving this evidence until after guilt had been
established. He argued that, since the prior indictment alleged an
attack on a woman with a knife, it would be especially prejudicial
in this case, because he was again charged with assaulting a female
with a knife. The trial judge agreed that it would be wrong to
consider the evidence regarding the earlier conviction for the
purpose of establishing the current offense, and he so instructed
the jury. [
Footnote 3/7]
Nevertheless, he refused to bifurcate the proceeding.
Page 459 U. S. 455
Respondent then offered to stipulate that the Illinois
conviction was for attempted murder, arguing that this would at
least eliminate any need to introduce the Illinois indictment. Both
the prosecutor and the trial judge rejected that offer. Instead,
the jury was given a copy of the Illinois indictment reciting the
details of the Illinois charge as well as the Illinois conviction
statement. The jury found respondent guilty of aggravated murder,
and found the specification to have been proved beyond a reasonable
doubt; the trial judge sentenced him to death.
The Ohio Court of Appeals reversed the aggravated murder
conviction on the ground that the State had failed to prove rape,
or even intercourse with the respondent, beyond a reasonable doubt.
However, the court rejected the argument that the jury's finding
that the respondent was guilty of murder had been unfairly
contaminated by its receipt of the Illinois indictment. On remand,
the trial court imposed a sentence of 15 years to life.
In retrospect, it is quite obvious that the highly prejudicial
Illinois indictment should never have been admitted into evidence
for any purpose at all. The indictment was relevant only to the
specification, the specification was relevant only if the murder
was aggravated, and the State failed to produce enough evidence of
aggravation even to justify sending the charge to the jury.
Even if there had been enough evidence of aggravation to reach
the jury, there was no legitimate reason for the State to give the
Illinois indictment to the jury until after it had found an
aggravated murder beyond a reasonable doubt. Sixteen years ago, the
Spencer Court upheld such a procedure by stressing that
state procedures varied widely and
Page 459 U. S. 456
that experimentation was still in progress. 385 U.S. at
385 U. S. 566.
Those facts are not true today. Bifurcated proceedings are now the
rule in capital cases throughout the Nation. [
Footnote 3/8] It is
Page 459 U. S. 457
simply no longer tenable to say that the difficulties of
administering a bifurcated trial are sufficient to justify a
State's use of a prejudicial one-stage system. Indeed, the tactics
employed in this case dramatically unmask the true prosecutorial
interest in preserving a one-stage procedure -- to enhance the
likelihood that the jury will convict. [
Footnote 3/9] Because the only premises that even
arguably support the holding in
Spencer are no longer
valid and plainly are not implicated in this case, I would not
permit that decision to dictate the result in this case.
Even under the holding in
Spencer, the Court should
take note of the fact that the prejudice associated with a
one-stage procedure increases whenever the written record of the
earlier proceeding is not sufficient on its face to foreclose a
challenge to the validity of the prior conviction. Such a challenge
often requires a discussion of the details of a prior offense or of
an unproved charge, thereby increasing the danger that the jury may
draw the inference that has been universally recognized as
impermissible throughout our history.
See 459
U.S. 422fn3/1|>n. 1,
supra. I would adopt a simple
rule that a one-stage enhancement procedure is constitutionally
intolerable whenever the documentary evidence of the prior
conviction fails to establish its validity and its relevance beyond
debate.
Cf. Spencer, 385 U.S. at
385 U. S. 562
("The evidence itself is usually, and in recidivist cases almost
always, of a documentary kind, and, in the cases before us, there
is no claim that its presentation was in any way inflammatory").
The documentary evidence in this case plainly failed to satisfy
that test.
Page 459 U. S. 458
Even if one believed that Ohio had a legitimate interest in
refusing to bifurcate these proceedings, it insults our
intelligence when it claims that it had a legitimate interest in
sending the Illinois
indictment to the jury. The State was
allegedly trying to show, for sentence enhancement purposes, that
respondent had been convicted of attempted murder in Illinois. The
conviction statement showed that he had been convicted of
"AGGRAVATED BATTERY, ETC." After failing in his efforts to get the
proceeding bifurcated, the respondent offered to stipulate that the
"ETC." referred to attempted murder. Yet the State refused to
accept this stipulation. The prosecutor instead insisted on sending
the indictment to the jury. The indictment was less probative of
the specification than a stipulation would have been, since the
conviction statement did not reflect a conviction for each of the
four charges listed in the indictment, and the State has never
suggested that it did. And the indictment was more prejudicial than
a stipulation would have been, since it recited the details of the
Illinois charge. The prosecutor's naked desire to inject prejudice
into the record had the effect of complicating and prolonging the
proceedings in this case [
Footnote
3/10]
Page 459 U. S. 459
and deprived the respondent of his constitutional right to a
fair trial.
I would affirm the judgment of the Court of Appeals for the
Sixth Circuit.
[
Footnote 3/1]
The common law has long deemed it unfair to argue that, because
a person has committed a crime in the past, he is more likely to
have committed a similar, more recent crime.
See, e.g., People
v. White, 14 Wend. 111, 113-114 (N.Y. Sup. Ct. 1835) (in
prosecution for possession of counterfeit money, improper to
introduce evidence of former conviction);
United States v.
Burr, 25 Fed.Cas. 187, 198 (No. 14,694) (CC Va. 1807)
(Marshall, C.J.) (in prosecution for providing support to a
treasonous military expedition in Virginia, improper to introduce
evidence that the accused had provided the means for a treasonous
military expedition in Kentucky);
King v. Doaks, Quincy's
Mass.Reports 90 (Mass.Sup.Ct. 1763) (in prosecution for keeping a
bawdy house, improper to introduce evidence of acts of
lasciviousness performed before the defendant became mistress of
the house); Hampden's Trial, 9 How.St.Tr. 1053, 1103 (Eng.1684) ("a
person was indicted of forgery, we would not let them give evidence
of any other forgeries but that for which he was indicted").
The objection to such evidence is not that the proposed
inference is illogical. The objection is rather that the inference
is so attractive that it will overwhelm the factfinder and create
an unwarranted presumption of guilt. As Professor Wigmore
explained:
"The natural and inevitable tendency of the tribunal -- whether
judge or jury -- is to give excessive weight to the vicious record
of crime exhibited, and either to allow it to bear too strongly on
the present charge or to take the proof of it as justifying a
condemnation irrespective of guilt of the present charge."
1 J. Wigmore, Evidence § 194 (3d ed.1940).
In
Michelson v. United States, 335 U.
S. 469 (1948), this Court observed:
"Not that the law invests the defendant with a presumption of
good character . . . but it simply closes the whole matter of
character, disposition and reputation on the prosecution's
case-in-chief. The state may not show defendant's prior trouble
with the law, specific criminal acts, or ill-name among his
neighbors, even though such facts might logically be persuasive
that he is, by propensity, a logical perpetrator of the crime. The
inquiry is not rejected because character is irrelevant; on the
contrary, it is said to weigh too much with the jury, and to so
overpersuade them as to prejudge one with a bad general record, and
deny him a fair opportunity to defend against a particular
charge."
Id. at
335 U. S.
475-476 (footnotes omitted).
[
Footnote 3/2]
Under Ohio law, the death penalty could not be imposed unless
the respondent had been convicted of "an offense of which the gist
was the purposeful killing or attempt to kill another." Ohio
Rev.Code Ann. § 2929.04(A)(5) (1975). An Illinois "conviction
statement" shows that the respondent pleaded guilty in 1972 to
"aggravated battery, etc." The prosecutor asserted that, in fact,
the respondent had pleaded guilty to attempted murder. Although the
conviction statement and indictment were clearly not sufficient,
standing alone, to prove that assertion beyond a reasonable doubt,
they were at least relevant to the inquiry.
[
Footnote 3/3]
Justice Harlan, who had authored the Court's opinion in
Spencer, dissented and was joined by Justice Black and
JUSTICE WHITE.
See 389 U.S. at
389 U. S.
120.
[
Footnote 3/4]
Compare Chief Justice Warren's observations, dissenting
in part in
Spencer:
"Of course it flouts human nature to suppose that a jury would
not consider a defendant's previous trouble with the law in
deciding whether he has committed the crime currently charged
against him. As Mr. Justice Jackson put it in a famous phrase,"
"[t]he naive assumption that prejudicial effects can be overcome
by instructions to the jury . . . all practicing lawyers know to be
unmitigated fiction."
"
Krulewitch v. United States, 336 U. S.
440,
336 U. S. 453 (concurring
opinion) (1949).
United States v. Banmiller, 310 F.2d 720,
725 (CA3 1962). Mr. Justice Jackson's assessment has received
support from the most ambitious empirical study of jury behavior
that has been attempted,
see H. Kalven & H. Zeisel,
The American Jury 127-130, 177-180 (1966)."
"Recognition of the prejudicial effect of prior-convictions
evidence has traditionally been related to the requirement of our
criminal law that the State prove beyond a reasonable doubt the
commission of a specific criminal act. It is surely engrained in
our jurisprudence that an accused's reputation or criminal
disposition is no basis for penal sanctions. Because of the
possibility that the generality of the jury's verdict might mask a
finding of guilt based on an accused's past crimes or unsavory
reputation, state and federal courts have consistently refused to
admit evidence of past crimes except in circumstances where it
tends to prove something other than general criminal
disposition."
385 U.S. at
385 U. S.
575.
[
Footnote 3/5]
JUSTICE WHITE's dissenting opinion was joined by Justice
Harlan.
[
Footnote 3/6]
The Court could also have relied on another opinion written by
Justice Jackson only three weeks before the
Krulewitch
case was argued. In
Michelson v. United States,
335 U. S. 469
(1948), a prosecutor had introduced the defendant's prior
conviction to rebut testimony that he had a reputation for being a
law-abiding citizen. After first discussing the general rule that
such evidence is not admissible,
see 459
U.S. 422fn3/1|>n. 1,
supra, the Court declared:
"The price a defendant must pay for attempting to prove his good
name is to throw open the entire subject which the law has kept
closed for his benefit, and to make himself vulnerable where the
law otherwise shields him."
335 U.S. at
335 U. S. 479.
Presaging both the Court's later holding in
Bruton and
also identifying the common element in
Bruton and
Burgett, Justice Jackson wrote:
"We do not overlook or minimize the consideration that 'the jury
almost surely cannot comprehend the judge's limiting instruction,'
which disturbed the Court of Appeals. The refinements of the
evidentiary rules on this subject are such that even lawyers and
judges, after study and reflection, often are confused, and surely
jurors in the hurried and unfamiliar movement of a trial must find
them almost unintelligible. However, limiting instructions on this
subject are no more difficult to comprehend or apply than those
upon various other subjects; for example, instructions that
admissions of a codefendant are to be limited to the question of
his guilt, and are not to be considered as evidence against other
defendants and instructions as to other problems in the trial of
conspiracy charges. A defendant in such a case is powerless to
prevent his cause from being irretrievably obscured and confused;
but, in cases such as the one before us, the law foreclosed this
whole confounding line of inquiry unless defendant thought the net
advantage from opening it up would be with him."
335 U.S. at
335 U. S.
484-485. It is ironic that the Court should pluck one
sentence out of the
Michelson opinion in ostensible
support of its "crucial assumption" that juries always mechanically
follow the instructions given them by trial judges.
See
ante at
459 U. S.
438-439, n. 6.
[
Footnote 3/7]
The judge's instruction stated, in part:
"Now the evidence presented to you concerning a prior conviction
of this Defendant, Robert Lonberger, for the offense of attempted
murder in Illinois in 1968 is not introduced for the purpose of
proving that the Defendant committed the offenses, or either of
them, for which he is being tried this week . . . you may not
consider it for the purpose of proving, in any way, that the
Defendant committed the offenses for which he is being tried
today."
Tr. 1178-1180.
[
Footnote 3/8]
Ohio's laws are unique in this country.
The District of Columbia and 13 States (Alaska, Hawaii, Iowa,
Kansas, Maine, Massachusetts, Michigan, Minnesota, North Dakota,
Oregon, Rhode Island, West Virginia, and Wisconsin) have no capital
punishment statutes at all.
Three States have capital punishment statutes limited to certain
precise categories of "aggravated" murder, where the existence of
prior convictions is not an aggravating circumstance. N.Y.Penal Law
§ 125.27(1) (a)(iii) (McKinney 1975) (
see People v. Davis,
43 N.Y.2d 17, and n. 3, 371 N.E.2d 456, and n. 3 (1977),
cert.
denied, 435 U.S. 998 and 438 U.S. 914 (1978)); Vt.Stat.Ann.,
Tit. 13, § 2303(c) (Supp.1982); Wash.Rev.Code § 10.95.020 (1981).
It is significant that, under the "habitual criminal" statutes in
all three States, where prior convictions are in effect
"aggravating circumstances," bifurcated proceedings are used.
See N.Y.Crim.Proc.Law § § 400.20, 400.21 (McKinney
Supp.1982);
State v. Angelucci, 137 Vt. 272,
405 A.2d 33
(1979);
State v. Gear, 30 Wash. App. 307, 633 P.2d 930
(1981).
Thirty-three States have capital punishment statutes with
bifurcated proceedings, so that evidence of aggravating
circumstances is not introduced until after the jury has determined
guilt or innocence. Ala.Code § 13A-5-45 (Supp.1982);
Ariz.Rev.Stat.Ann. § 13-703B (Supp.1982); Ark.Stat.Ann. § 41-1301
(1977); Cal.Penal Code Ann. § 190.1 (West Supp.1982);
Colo.Rev.Stat. § § 16-11-103, 18-1-105(4) (1978 and Supp.1982);
Conn.Gen.Stat. § 53a-46a (Supp.1982); Del.Code Ann., Tit. 11, §
4209(b) (1979); Fla.Stat. § 921.141 (Supp.1982); Ga.Code Ann. §
17-10-31 (1982); Idaho Code § 19-2515 (1979); Ill.Rev.Stat., ch.
38, � 9-1(d) (1979); Ind.Code § 35-50-2-9(d) (1979); Ky.Rev.Stat. §
532.025 (Supp.1982); La.Code Crim.Proc.Ann., Art. 905 (West
Supp.1982); Md.Ann.Code, Art. 27, § 413(a) (1982); Miss.Code Ann. §
99-19-101 (Supp.1982); Mo.Rev.Stat. § 565.006 (Supp.1982);
Mont.Code Ann. § 46-18-301 (1981); Neb.Rev.Stat. § 29-2520 (1979);
Nev.Rev.Stat. § 175.552 (1981); N.H.Rev.Stat.Ann. § 630:5
(Supp.1981); N.J.Stat.Ann. § 2C:11-3.c (West 1982); 1982 N.J.Laws,
ch. 111; N.M.Stat.Ann. § 31-18-14(A) (1981); N.C.Gen.Stat. §
15A-2000 (Supp.1981); Okla.Stat., Tit. 21, § 701.10 (Supp.1982); 42
Pa.Cons.Stat. § 9711 (Supp.1982); S.C.Code § 16-3-20 (1982);
S.D.Comp.Laws Ann. § 23A-27A-2 (1979); Tenn.Code Ann. § 39-2404
(Supp.1981); Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981);
Utah Code Ann. § 76-3-207 (1978); Va.Code § 19.2-264.4 (Supp.1982);
Wyo.Stat. § § 6-4-101, 6-4-102 (1977).
Only Ohio considers prior convictions as aggravating
circumstances without a fully bifurcated proceeding. Today, Ohio's
system is half bifurcated: guilt and aggravating circumstances are
considered together in one phase, mitigating circumstances in a
second. Ohio Rev.Code Ann. § 2929.03 (1982).
[
Footnote 3/9]
The stark contrast between the gratuitous use of prejudicial
evidence over the defendant's objection in this case and the
justification for the prosecutor's rebuttal when the defendant
opened up the subject in
Michelson, see 459
U.S. 422fn3/6|>n. 6,
supra, highlights this
conclusion.
[
Footnote 3/10]
After the Ohio Court of Appeals remanded to the state trial
court for resentencing in 1977, both the State and the respondent
sought review in the Ohio Supreme Court, which was denied. After
resentencing, the respondent sought federal habeas corpus relief in
the United States District Court for the Northern District of Ohio.
That court denied relief in an unpublished opinion and order. He
appealed to the United States Court of Appeals for the Sixth
Circuit, which reversed and ordered that the writ issue.
Lonberger v. Jago, 635 F.2d 1189 (1980). The State sought
rehearing in the Court of Appeals, which was denied. This Court
granted certiorari, 451 U.S. 902 (1981), vacating the judgment of
the Sixth Circuit and remanding for further consideration in light
of
Sumner v. Mata, 449 U. S. 539
(1981). The Sixth Circuit reinstated its prior judgment.
Lonberger v. Jago, 651 F.2d 447 (1981). The State again
sought certiorari, which we again granted. 454 U.S. 1141 (1982).
Today, almost six years after the Ohio Court of Appeals held that
the issue of aggravated murder should never even have gone to the
jury, litigation of this issue draws to a close.