Respondent was tried before a jury in a Texas District Court and
convicted of murder. He elected to be sentenced by the jury, as was
his right under Texas law, and the jury imposed a 20-year sentence.
The trial judge then granted respondent's motion for a new trial on
the basis of prosecutorial misconduct. Respondent was retried
before a jury, with the same trial judge presiding, and again was
found guilty. This time he elected to have the judge fix his
sentence, and she imposed a 50-year sentence. To justify the longer
sentence, the judge entered the following findings of fact: the
testimony of two state witnesses who had not testified at the first
trial added to the credibility of the State's key witness and
detracted from the credibility of respondent and a defense witness;
the two new witnesses' testimony directly implicated respondent in
the commission of the murder and shed new light upon his life and
conduct; and it was learned for the first time on retrial that
respondent had been released from prison only four months before
the murder. The Texas Court of Appeals reversed and sentenced
respondent to 20 years' imprisonment, considering itself bound by
North Carolina v. Pearce, 395 U.
S. 711, wherein it was held that the Due Process Clause
of the Fourteenth Amendment prevented increased sentences on
retrial when the increase was motivated by the sentencing judge's
vindictiveness, and that, to show the absence of vindictiveness,
the reasons for imposing the increased sentence must affirmatively
appear. The Texas Court of Criminal Appeals, while holding that, as
a matter of procedure, the case should have been remanded to the
trial judge for resentencing, also held that, under
Pearce, vindictiveness must be presumed even though a jury
had fixed punishment at the first trial and a judge had fixed it at
the second trial.
Held: The Due Process Clause was not violated by the
trial judge's imposition of a greater sentence on retrial. Pp.
475 U. S.
137-144.
(a) The facts of this case provide no basis for a
Pearce presumption of vindictiveness. In contrast to
Pearce, respondent's second trial came about because the
trial judge herself concluded that the prosecutor's misconduct
required it. Granting respondent's motion for a new trial hardly
suggests any vindictiveness on the judge's part toward him. The
presumption is also inapplicable because different sentencers
assessed the
Page 475 U. S. 135
varying sentences, the second sentencer providing an
on-the-record, logical, nonvindictive reason for the longer
sentence. Pp.
475 U. S.
137-140.
(b) Even if the
Pearce presumption were to apply here,
the trial judge's findings on imposing the longer sentence overcame
that presumption. Those findings clearly constituted "objective
information justifying the increased sentence,"
United States
v. Goodwin, 457 U. S. 368,
457 U. S. 375.
Pp.
475 U. S.
141-144.
720
S.W.2d 89, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J.,
filed an opinion concurring in the judgment,
post, p.
475 U. S. 144.
MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and
STEVENS, JJ., joined,
post, p.
475 U. S.
145.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether the Due Process Clause
of the Fourteenth Amendment was violated when the defendant in a
state court received a greater sentence on retrial where the
earlier sentence was imposed by the jury, the trial judge granted
the defendant's motion for a new trial, the defendant requested
that, in the second trial, the judge fix the sentence, and the
judge entered findings of fact justifying the longer sentence.
I
In 1980, Sanford James McCullough was tried before a jury in the
Randall County, Texas, District Court and convicted of murder.
McCullough elected to be sentenced by the jury, as
Page 475 U. S. 136
was his right under Texas law. Tex.Code Crim.Proc.Ann., Art.
37.07 (Vernon 1981). The jury imposed a 20-year sentence. Judge
Naomi Harney, the trial judge, then granted McCullough's motion for
a new trial on the basis of prosecutorial misconduct.
Three months later, McCullough was retried before a jury, with
Judge Harney again presiding. At this trial, the State presented
testimony from two witnesses who had not testified at the first
trial that McCullough, rather than his accomplices, had slashed the
throat of the victim. McCullough was again found guilty by a jury.
This time, he elected to have his sentence fixed by the trial
judge. Judge Harney sentenced McCullough to 50 years in prison and,
upon his motion, made findings of fact as to why the sentence was
longer than that fixed by the jury in the first trial. She found
that, in fixing the sentence, she relied on new evidence about the
murder that was not presented at the first trial, and hence never
made known to the sentencing jury. The findings focused
specifically on the testimony of two new witnesses, Carolyn
Hollison McCullough and Willie Lee Brown, which "had a direct
effect upon the strength of the State's case at both the guilt and
punishment phases of the trial." App. to Pet. for Cert. A-23. In
addition, Judge Harney explained that she learned for the first
time on retrial McCullough had been released from prison only four
months before the later crime had been committed.
Ibid.
Finally, the judge candidly stated that, had she fixed the first
sentence, she would have imposed more than 20 years.
Id.
at A-24. [
Footnote 1]
On appeal, the Texas Court of Appeals reversed and resentenced
McCullough to 20 years' imprisonment. 680 S.W.2d 493 (1983). That
court considered itself bound by this Court's decision in
North
Carolina v. Pearce, 395 U. S. 711
(1969), and held that a longer sentence upon retrial could be
Page 475 U. S. 137
imposed only if it was based upon conduct of the defendant
occurring after the original trial. [
Footnote 2] Petitioner sought review in the Texas Court of
Criminal Appeals, and that court limited its review to whether the
Texas Court of Appeals had authority to limit respondent's sentence
to 20 years.
720
S.W.2d 89 (1983). The court concluded that, as a matter of
procedure, the case should have been remanded to the trial judge
for resentencing. On petitioner's motion for rehearing, the court
concluded that, under
Pearce, vindictiveness must be
presumed even though a jury had fixed punishment at the first trial
and a judge had fixed it at the second trial. We granted
certiorari. 472 U.S. 1007 (1985). We reverse.
II
In
North Carolina v. Pearce, supra, the Court placed a
limitation on the power of a sentencing authority to increase a
sentence after reconviction following a new trial. It held that the
Due Process Clause of the Fourteenth Amendment prevented increased
sentences when that increase was motivated by vindictiveness on the
part of the sentencing judge. The Court stated:
"Due process of law, then, requires that vindictiveness against
a defendant for having successfully attacked his first conviction
must play no part in the sentence he receives after a new trial.
And since the fear of such vindictiveness may unconstitutionally
deter a defendant's exercise of the right to appeal or collaterally
attack his first conviction, due process also requires that a
defendant
Page 475 U. S. 138
be freed of apprehension of such a retaliatory motivation on the
part of the sentencing judge."
"In order to assure the absence of such a motivation, we have
concluded that, whenever a judge imposes a more severe sentence
upon a defendant after a new trial,
the reasons for his doing
so must affirmatively appear."
Id. at
395 U. S.
725-726 (emphasis added). Beyond doubt, vindictiveness
of a sentencing judge is the evil the Court sought to prevent,
rather than simply enlarged sentences after a new trial. The
Pearce requirements thus do not apply in every case where
a convicted defendant receives a higher sentence on retrial. Like
other "judicially created means of effectuating the rights secured
by the [Constitution],"
Stone v. Powell, 428 U.
S. 465,
428 U. S. 482
(1976), we have restricted application of
Pearce to areas
where its "objectives are thought most efficaciously served," 428
U.S. at
428 U. S. 487.
Accordingly, in each case, we look to the need, under the
circumstances, to "guard against vindictiveness in the resentencing
process."
Chaffin v. Stynchcombe, 412 U. S.
17,
412 U. S. 25
(1973) (emphasis omitted). For example, in
Moon v.
Maryland, 398 U. S. 319
(1970), we held that
Pearce did not apply when the
defendant conceded and it was clear that vindictiveness had played
no part in the enlarged sentence. In
Colten v. Kentucky,
407 U. S. 104
(1972), we saw no need for applying the presumption when the second
court in a two-tier trial system imposed a longer sentence. In
Chaffin, supra, we held
Pearce not applicable
where a jury imposed the increased sentence on retrial. Where the
prophylactic rule of
Pearce does not apply, the defendant
may still obtain relief if he can show actual vindictiveness upon
resentencing.
Wasman v. United States, 468 U.
S. 559,
468 U. S. 569
(1984).
The facts of this case provide no basis for a presumption of
vindictiveness. In contrast to
Pearce, McCullough's second
trial came about because the trial judge herself concluded that the
prosecutor's misconduct required it. Granting
Page 475 U. S. 139
McCullough's motion for a new trial hardly suggests any
vindictiveness on the part of the judge towards him. "[U]nlike the
judge who has been reversed," the trial judge here had "no
motivation to engage in self-vindication."
Chaffin, 412
U.S. at
412 U. S. 27. In
such circumstances, there is also no justifiable concern about
"institutional interests that might occasion higher sentences by a
judge desirous of discouraging what he regards as meritless
appeals."
Ibid. In granting McCullough's new trial motion,
Judge Harney went on record as agreeing that his "claims" had
merit. Presuming vindictiveness on this basis alone would be
tantamount to presuming that a judge will be vindictive towards a
defendant merely because he seeks an acquittal. Thus, in support of
its position, the dissent conjures up visions of judges who view
defendants as temerarious for filing motions for new trials,
post at
475 U. S. 151,
and who are "annoyed" at being forced "to sit through . . .
trial[s] whose result[s] [are] foregone conclusion[s],"
post at
475 U. S. 150.
We decline to adopt the view that the judicial temperament of our
Nation's trial judges will suddenly change upon the filing of a
successful post-trial motion. The presumption of
Pearce
does not apply in situations where the possibility of
vindictiveness is this speculative, particularly since the
presumption may often "operate in the absence of any proof of an
improper motive, and thus . . . block a legitimate response to
criminal conduct,"
United States v. Goodwin, 457 U.
S. 368,
457 U. S. 373
(1982). Indeed, not even "apprehension of such a retaliatory
motivation on the part of the sentencing judge,"
Pearce,
395 U.S. at
395 U. S. 725,
could be present in this case. McCullough was entitled by law to
choose to be sentenced by either a judge or a jury. Faced with that
choice, on retrial, McCullough chose to be sentenced by Judge
Harney. There can hardly be more emphatic affirmation of his
appraisal of Judge Harney's fairness than this choice. Because
there was no realistic motive for vindictive sentencing, the
Pearce presumption was inappropriate.
Page 475 U. S. 140
The presumption is also inapplicable because different
sentencers assessed the varying sentences that McCullough received.
In such circumstances, a sentence "increase" cannot truly be said
to have taken place. In
Colten v. Kentucky, supra, which
bears directly on this case, we recognized that, when different
sentencers are involved,
"[i]t may often be that the [second sentencer] will impose a
punishment more severe than that received from the [first]. But it
no more follows that such a sentence is a vindictive penalty for
seeking a [new] trial than that the [first sentencer] imposed a
lenient penalty."
Id. at
407 U. S. 117.
Here, the second sentencer provides an on-the-record, wholly
logical, nonvindictive reason for the sentence. We read
Pearce to require no more, particularly since trial judges
must be accorded broad discretion in sentencing,
see Wasman,
supra, at
468 U. S.
563-564.
In this case, the trial judge stated candidly her belief that
the 20-year sentence respondent received initially was unduly
lenient in light of significant evidence not before the sentencing
jury in the first trial. On this record, that appraisal cannot be
faulted. In any event, nothing in the Constitution prohibits a
state from permitting such discretion to play a role in sentencing.
[
Footnote 3]
Page 475 U. S. 141
III
Even if the
Pearce presumption were to apply here, we
hold that the findings of the trial judge overcome that
presumption. Nothing in
Pearce is to be read as precluding
a rebuttal of intimations of vindictiveness. As we have explained,
Pearce permits
"a sentencing authority [to] justify an increased sentence by
affirmatively identifying relevant conduct or events that occurred
subsequent to the original sentencing proceedings."
Wasman, 468 U.S. at
468 U. S. 572;
see also id. at
468 U. S. 573
(POWELL, J., concurring in part and concurring in judgment). This
language, however, was never intended to describe exhaustively all
of the possible circumstances in which a sentence increase could be
justified. Restricting justifications for a sentence increase to
only "events that occurred subsequent to the original sentencing
proceedings" could in some circumstances lead to absurd results.
The Solicitor General provides the following hypothetical
example:
"Suppose . . . that a defendant is convicted of burglary, a
nonviolent, and apparently first, offense. He is sentenced to a
short prison term, or perhaps placed on probation. Following a
successful appeal and a conviction on retrial, it is learned that
the defendant has been using an alias, and in fact has a long
criminal record that includes other burglaries, several armed
robbery convictions, and a conviction for murder committed in the
course of a burglary. None of the reasons underlying
Pearce in any way justifies the perverse result that the
defendant receive no greater sentence in light of this information
than he originally received when he was thought to be a first
offender."
Brief for United States as
Amicus Curiae 26.
Page 475 U. S. 142
We agree with the Solicitor General, and find nothing in
Pearce that would require such a bizarre conclusion.
[
Footnote 4] Perhaps, then, the
reach of
Pearce is best captured in our statement in
United States v. Goodwin, 457 U.S. at
457 U. S.
374:
"In sum, the Court [in
Pearce] applied a presumption of
vindictiveness, which may be overcome only by objective information
. . . justifying the increased sentence."
Nothing in the Constitution requires a judge to ignore
"objective information . . . justifying the increased sentence." In
refusing to apply
Pearce retroactively, we observed that
"the
Pearce prophylactic rules assist in guaranteeing the
propriety of the sentencing phase of the criminal process."
Michigan v. Payne, 412 U. S. 47,
412 U. S. 52-53
(1973). Realistically, if anything, this focus would
require, rather than
forbid, the consideration of
the relevant evidence bearing on sentence, since
Page 475 U. S. 143
"'[h]ighly relevant -- if not essential -- to [the] selection of
an appropriate sentence is the possession of the fullest
information possible concerning the defendant's life and
characteristics.'"
Wasman, supra, at
468 U. S. 564
(quoting
Williams v. New York, 337 U.
S. 241,
337 U. S. 247
(1949)).
To be sure, a defendant may be more reluctant to appeal if there
is a risk that new, probative evidence supporting a longer sentence
may be revealed on retrial. But this Court has never recognized
this "chilling effect" as sufficient reason to create a
constitutional prohibition against considering relevant information
in assessing sentences. We explained in
Chaffin v.
Stynchcombe, 412 U.S. at
412 U. S. 29,
that
"the Court [in
Pearce] intimated no doubt about the
constitutional validity of higher sentences in the absence of
vindictiveness despite whatever incidental deterrent effect they
might have on the right to appeal."
We see no reason to depart from this conclusion.
It is clear that the careful explanation by the trial judge for
the sentence imposed here fits well within our prior holdings.
Judge Harney relied on the testimony of two new witnesses, which
she concluded "had a direct effect upon the strength of the State's
case at both the guilt and punishment phases of the trial." App. to
Pet. for Cert. A-23. The judge supported this conclusion with
specific findings, noting that
"[t]he testimony [of the two new witnesses] added to the
credibility of the State's key witness . . . and detracted from the
credibility of Dennis McCullough and [respondent], who both
testified for the defense."
Ibid. The judge also found that
"[t]he testimony of these two witnesses directly implicated the
defendant in the commission of the murder in question, and showed
what part he played in committing the offense."
Id. at A-22. Finally, the judge concluded that their
testimony "shed new light upon [McCullough's] life, conduct, and
his mental and moral propensities."
Id. at A-23. These
findings clearly constitute "objective information . . . justifying
the increased sentence."
Page 475 U. S. 144
Judge Harney also found that McCullough had been released from
confinement only four months before the murder,
ibid.,
another obviously relevant fact not before the sentencing jury in
the first trial. We have recognized the state's legitimate
interest
"in dealing in a harsher manner with those who, by repeated
criminal acts, have shown that they are simply incapable of
conforming to the norms of society as established by its criminal
law."
Rummel v. Estelle, 445 U. S. 263,
445 U. S. 276
(1980). A defendant who commits new crimes within four months of
his release from prison clearly poses a greater danger to society
than one who commits crimes less often. To foreclose reliance on
the kind of pertinent new information developed in the second trial
would be wholly incompatible with modern sentencing standards. This
new objective information also amply justified McCullough's
increased sentence.
In setting aside the second sentence, the Texas Court of Appeals
recognized that the new information bore legitimately on the
appropriate sentence to impose, but concluded, reluctantly, that
Pearce precluded reliance on this information. It is
appropriate that we clarify the scope and thrust of
Pearce, and we do so here.
The case is remanded to the Texas Court of Criminal Appeals for
further proceedings not inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
Later, Judge Harney sentenced two other defendants for their
role in the same murder. She gave both defendants 50-year sentences
identical to McCullough's.
[
Footnote 2]
The Texas Court of Appeals, in applying
Pearce,
observed:
"This case demonstrates the excessive scope of
Pearce.
The trial judge filed detailed and valid reasons for the heavier
punishment, and there is nothing in the record to indicate that the
increased punishment resulted from vindictiveness. However, the
reasons affirmatively supported by evidence are based on events
occurring during or after the crime, but before the first trial.
Although those matters were not brought out at the first trial,
they cannot be used [under
Pearce] to increase punishment,
because none occurred
after the first trial."
680 S.W.2d at 496, n. 2.
[
Footnote 3]
Pearce itself apparently involved different judges
presiding over the two trials, a fact that has led some courts to
conclude by implication that the presumption of vindictiveness
applies even where different sentencing judges are involved.
See, e.g., United States v. Hawthorne, 532 F.2d 318, 323
(CA3),
cert. denied, 429 U.S. 894 (1976). That fact,
however, may not have been drawn to the Court's attention, and does
not appear anywhere in the Court's opinion in
Pearce.
Clearly the Court did not focus on it as a consideration for its
holding.
See Hardwick v. Doolittle, 558 F.2d 292, 299 (CA5
1977),
cert. denied, 434 U.S. 1049 (1978). Subsequent
opinions have also elucidated the basis for the
Pearce
presumption. We held in
Chaffin v. Stynchcombe,
412 U. S. 17
(1973), for instance, that the presumption derives from the judge's
"personal stake in the prior conviction,"
id. at
412 U. S. 27, a
statement clearly at odds with reading
Pearce to answer
the two-sentencer issue. We therefore decline to read
Pearce as governing this issue.
See also n 4,
infra.
[
Footnote 4]
The dissent contends that this objection "was considered in
Pearce and rejected there."
Post at
475 U. S. 155.
In fact, the issue, like the two-sentencer issue just discussed,
was not before the Court, because, in neither
Pearce nor
its companion case, did the State offer "any reason or
justification" for the increased sentence. 395 U.S. at
395 U. S. 726.
Moreover,
Pearce was argued on the assumption that the
Constitution either absolutely forbade or permitted increased
sentences on retrial. None of the briefs advanced the intermediate
position ultimately relied upon by the Court that the Constitution
permits increased sentences only in certain circumstances.
Cf. Brief for American Civil Liberties Union
et
al. as
Amici Curiae in
North Carolina v.
Pearce, O.T. 1968, No. 413, pp. 8-10 (quoted
post at
475 U. S.
155-156) (arguing that "[t]o subject an accused to the
risk of harsher punishment . . . as a condition of appeal . . . is
an unconstitutional condition which violates the Due Process
Clauses of the Fifth and Fourteenth Amendments"). Thus, as the
Solicitor General points out,
"in formulating the standard set forth in
Pearce, the
Court was completely without the 'sharpen[ing of] the presentation
of issues' provided by the adversary process, 'upon which the court
so largely depends for illumination of difficult constitutional
issues.'"
Brief for United States as
Amicus Curiae 22-23 (quoting
Baker v. Carr, 369 U. S. 186,
369 U. S. 204
(1962)). But even if
Pearce could be read to speak
definitively to this situation, we are not reluctant to tailor
judicially created rules to implement constitutional guarantees,
like the
Pearce rule,
see Michigan v. Payne,
412 U. S. 47,
412 U. S. 51
(1973), when the need to do so becomes apparent.
Cf. United
States v. Leon, 468 U. S. 897
(1984).
JUSTICE BRENNAN, concurring in the judgment.
After respondent was sentenced to 20 years' imprisonment upon
his conviction for murder, Judge Harney granted respondent's motion
for a new trial based on prosecutorial misconduct. Under these
circumstances, I believe that the possibility that an increased
sentence upon retrial resulted from judicial vindictiveness is
sufficiently remote that the presumption established in
North
Carolina v. Pearce, 395 U. S. 711
(1969), should not apply here. Because respondent has not shown
that the 50-year sentence imposed by
Page 475 U. S. 145
Judge Harney after respondent's retrial resulted from actual
vindictiveness for having successfully attacked his first
conviction, I would reverse the judgment below.
I emphasize, however, that, were I able to find that
vindictiveness should be presumed here, I would agree with JUSTICE
MARSHALL that "the reasons offered by Judge Harney [were] far from
adequate to rebut any presumption of vindictiveness."
Post
at
475 U. S. 152.
The Court's dictum to the contrary,
see ante at
475 U. S.
141-144, serves in my view only to distort the holding
of
Pearce.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, dissenting.
With little more than a passing nod to the considerations that
prompted this Court, in
North Carolina v. Pearce,
395 U. S. 711
(1969), to safeguard due process rights by establishing a
prophylactic rule of presumptive vindictiveness, the majority first
refuses to apply that rule in a case where those considerations are
clearly relevant, and then proceeds to rob that rule of any
vitality even in cases in which it will be applied. Because I
believe that, under the rationale of
Pearce, we must
presume vindictiveness here, and that the findings of the trial
judge with respect to respondent's second sentence should not be
permitted to defeat that presumption, I must dissent.
I
After the jury in Sanford James McCullough's first trial imposed
a sentence of 20 years' imprisonment, the Randall County Criminal
District Attorney thought McCullough had been treated much too
leniently. A local newspaper quoted the prosecutor as commenting:
"A guy's life ought to be worth more than that." Amarillo
Globe-Times, Sept. 24, 1980, p. 25, col. 1; Record, Defendant's
Exhibit 5. Luckily for the District Attorney, McCullough was not
satisfied with the results of his first trial either. McCullough
filed a motion
Page 475 U. S. 146
with the trial court requesting a new trial and raising two
challenges to Judge Harney's conduct of the first trial:
"
I
."
"The Trial Court erred in not granting Defendant's Motion for
Mistrial subsequent to the prosecutor's improper jury argument
concerning the fact that the jury, if they only gave the Defendant
ten to fifteen years in the penitentiary, would look outside their
window at the end of that period of time and wonder if the criminal
out there was the Defendant."
"
II
."
"The Trial Court erred in overruling Defendant's Motion for
Mistrial subsequent to the prosecutor's cross-examination of the
witness, DENNIS McCULLOUGH, as to a purported 'confession' given by
a Co-Defendant, KENNETH McCULLOUGH. Such conduct constituted error
in light of
Bruton vs. United States[, 391 U. S.
123 (1968)]."
Defendant's Motion for a New Trial, App. 17.
When Judge Harney entertained this motion on October 6, 1980,
there was no argument to be heard. The Assistant District Attorney
noted the State's full agreement to a retrial. 2 Tr. 432-433 (Oct.
6, 1980). The next day's newspaper made the prosecutor's motives
clear.
"In a rare occurrence, the Randall County Criminal District
Attorney Randy Sherrod said yesterday he has joined a defense
motion calling for a new trial in the case of Sanford James
McCullough, who was found guilty Sept. 24 of the murder of George
Preston Small and sentenced to 20 years in the penitentiary."
"Sherrod said it was the first time in his experience that he
had been in agreement with a defense attorney in granting a new
trial."
"He said one of the biggest factors influencing his decision to
join the defense motion was the possibility of a
Page 475 U. S. 147
[
sic] getting a harsher sentence in a new trial."
Amarillo Daily News, Oct. 7, 1980, p. C-l, col. l; Record,
Defendant's Exhibit 2.
See also Amarillo Globe-Times, Oct.
7, 1980, p. 21, cols. 1-6 ("DA Agrees to New Trial for Man
Convicted in Murder Case"); Record, Defendant's Exhibit 1.
In the face of this publicity, the defense moved for a change of
venue, but its motion was denied. 2 Tr. 518 (Nov. 7, 1980). Having
failed in this attempt to ensure that McCullough's second jury had
no knowledge of his conviction and sentence in the first trial, the
defense postponed its election of sentencer until it could hear the
results of
voir dire. 3 Tr. 7-8 (Dec. 10-12, 1980). During
voir dire, at least 13 prospective jurors were excused
after indicating that their knowledge of the first trial's results
would affect their ability to give McCullough a fair trial.
Id. at 17-33. Immediately after the close of
voir
dire, the defendant elected to be sentenced by the trial judge
if convicted.
Id. at 122; App. 25-26. McCullough's
election likely was affected by his counsel's belief that, while
Chaffin v. Stynchcombe, 412 U. S. 17
(1973), had made the rule of
North Carolina v. Pearce,
supra, inapplicable to resentencing by a different jury, that
rule would still bar Judge Harney from imposing a sentence greater
than the 20 years defendant had received in his first trial. But
fears that
voir dire had not been sufficient to purge the
jury of all knowledge of McCullough's first trial could well have
played as great a part in that decision.
After McCullough was convicted a second time, Judge Harney heard
argument on sentencing. Defense counsel urged that, "there being no
additional evidence on the part of the conduct or action of the
Defendant subsequent to the prior conviction," the court was bound
by
North Carolina v. Pearce, supra, to impose a sentence
of not more than 20 years. 2 Tr. 273-274 (Dec. 10-12, 1980). The
prosecution replied that, because defendant had elected to be
sentenced by the trial judge,
North Carolina v. Pearce
would not bar
Page 475 U. S. 148
the court "from assessing a range of punishment greater than
what was received by a jury." 2 Tr. 277 (Dec. 10-12, 1980). Judge
Harney sentenced McCullough to 50 years' imprisonment. In response
to defendant's motion, she later filed an order in which, while
holding the rule of
North Carolina v. Pearce inapplicable,
she gave her reasons for imposing a heavier sentence in order to
make remand unnecessary should the Court of Criminal Appeals hold
the rule applicable. App. 33. She found that the testimony of two
new witnesses, Carolyn Sue Hollison McCullough and Willie Lee
Brown, implicated defendant in the crime, added to the credibility
of certain prosecution witnesses, and detracted from that of
certain defense witnesses. The testimony also "shed new light upon
the defendant's life, conduct, and his mental and moral
propensities," especially his "propensity to commit brutal crimes
against persons and to constitute a future threat to society."
Id. at 34. Judge Harney noted further that, had defendant
"elected to have the court set his punishment at the first trial,
the court would have assessed more than the twenty (20) year
sentence imposed by the jury."
Ibid. Finally, the court
found:
"Upon retrial, after having been found guilty of murder for a
second time by a jury and after having made known to the court that
he had been involved in numerous criminal offenses and had served
time in the penitentiary, the defendant never produced, or even
attempted to produce, any evidence that he intended to change his
lifestyle, habits, or conduct, or that he had made any effort
whatsoever toward rehabilitating himself. Again upon retrial, the
[
sic] failed to show this court any sign or indication of
refraining from criminal conduct in the future, nor did he give any
indication upon retrial that he no longer posed a violent and
continuing threat to our society."
Id. at 35.
Page 475 U. S. 149
II
A
At the outset, one must reject the majority's suggestion,
ante at
475 U. S. 139,
that the fact that McCullough elected to be sentenced by Judge
Harney has any relevance to the question whether
Pearce
requires us to presume that the increase in his sentence was the
product of the judge's vindictiveness. The message of
Pearce is not that a defendant should be given a chance to
choose the sentencing agency least likely to increase his sentence
as a price for his decision to pursue an appeal. Rather,
Pearce held that, under the Due Process Clause,
"vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence he
receives after a new trial."
395 U.S. at
395 U. S. 725.
Thus, in
Chaffin v. Stynchcombe, supra, where the
defendant had been tried and sentenced by a jury at his first
trial, the Court assumed that, if the defendant had elected to be
tried and sentenced by a judge at his retrial,
Pearce
would circumscribe the sentence the judge could impose should
defendant be convicted again.
See 412 U.S. at
412 U. S. 33, n.
21.
Had McCullough's first conviction been overturned on appeal,
rather than nullified by Judge Harney's order for a retrial, it
would make no sense to allow McCullough's decision to be sentenced
by the court to deprive him of the safeguards against judicial
vindictiveness established in
Pearce. Whether or not that
judge had been the sentencing authority in the first proceeding, we
would fear that the judge would have had a "personal stake in the
prior conviction" and a "motivation to engage in self-vindication,"
as well as a wish to "discourag[e] what [s]he regards as meritless
appeals."
Chaffin, supra, at
412 U. S. 27.
Moreover, it would not be appropriate to find a waiver of
McCullough's due process right in his exercise of his statutory
right to elect his sentencer, especially in a case where
defendant's choice might have been influenced by a desire to avoid
being sentenced by a jury from a
Page 475 U. S. 150
community that had been exposed to the considerable publicity
surrounding his first trial.
B
In
Pearce, recognition of the possibility that personal
animosity and institutional prejudices might infect a trial judge's
resentencing of a defendant after a successful appeal led this
Court to establish a rule of presumptive vindictiveness. The
question here is whether these same personal and institutional
prejudices may infect a judge's sentencing following a retrial that
the judge herself ordered.
The majority reasons that,
"[i]n contrast to
Pearce, McCullough's second trial
came about because the trial judge herself concluded that the
prosecutor's misconduct required it. Granting McCullough's motion
for a new trial hardly suggests any vindictiveness on the part of
the judge towards him."
Ante at
475 U. S.
138-139. Such an observation betrays not only an
insensitivity to the motives that might underlie any trial judge's
decision to grant a motion for a new trial but also a blindness to
the peculiar circumstances surrounding the decision to grant a
retrial in this case.
The mere grant of a new trial motion can in no way be considered
a guarantee, or even an indication, that the judge will harbor no
resentment toward defendant as a result of his decision to exercise
his statutory right to make such a motion. Even where a trial judge
believes that the assignments of error are valid, she may still
resent being given a choice between publicly conceding such errors
and waiting for her judgment to be put to the test on appeal. This
will be especially true when the errors alleged, however
substantial as a matter of constitutional or statutory law, are
considered by the judge not to cast doubt on the defendant's guilt.
In such a case, the judge might well come to defendant's sentencing
annoyed at having been forced to sit through a trial whose result
was a foregone conclusion, and quite ready to vent that annoyance
by giving the defendant a sentence stiffer than he
Page 475 U. S. 151
otherwise would have received. Even if a trial judge is
confident that her conduct of a trial was error-free, she may still
grant a new trial if she has any doubts as to whether the courts
reviewing her ruling will agree. In this situation, the feelings of
resentment already alluded to might be augmented by the judge's
annoyance with the courts that review her judgments.
Turning to the facts here, I believe the possibility of
vindictiveness is even greater in this case than in the general run
of cases in which a trial judge has granted a retrial. It is far
from clear that Judge Harney's decision to grant a new trial was
made out of either solicitude for McCullough or recognition of the
merits of his claims. Defendant's motion was uncontested and, if
the press coverage is any indication, the judge's decision to grant
it was at least as much a boon to the prosecution as it was to
defendant. Indeed, the most cynical might even harbor suspicions
that the judge shared the District Attorney's hope that a retrial
would permit the imposition of a sentence more commensurate with
the prosecution's view of the heinousness of the crime for which
McCullough had been brought to bar. At any rate, one can imagine
that, when it fell to Judge Harney to sentence McCullough after his
second conviction, his decision to seek a retrial after receiving
such a comparatively light sentence from his first jury was counted
against him.
Whether any of these considerations actually played any part in
Judge Harney's decision to give McCullough a harsher sentence after
his retrial is not the issue here, just as it was not the issue in
Pearce. The point is that the possibility they did play
such a part is sufficiently real, and proving actual prejudice
sufficiently difficult, that a presumption of vindictiveness is as
appropriate here as it was in
Pearce. See Van
Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful"
Criminal Appellant, 74 Yale L.J. 606, 612, and n. 22 (1965) (noting
difficulties faced by defendant seeking to show actual
vindictiveness).
Page 475 U. S. 152
III
The majority holds that "[e]ven if the
Pearce
presumption were to apply here, . . . the findings of the trial
judge overcome that presumption."
Ante at
475 U. S. 141.
I find the reasons offered by Judge Harney far from adequate to
rebut any presumption of vindictiveness. Moreover, I believe that,
by holding those reasons sufficient, the Court effectively
eviscerates the effort made in
Pearce to ensure both that
vindictiveness against a defendant for having successfully attacked
his first conviction "play no part in the sentence he receives
after a new trial," 395 U.S. at
395 U. S. 725,
and that the "defendant be freed of apprehension of such a
retaliatory motivation on the part of the sentencing judge."
Ibid.
A
The presumption of vindictiveness established in
Pearce
was made rebuttable. The Court there held that, where a judge
decides to impose a more severe sentence on a defendant after a new
trial,
"the reasons for his doing so must affirmatively appear. Those
reasons must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding. And the factual
data upon which the increased sentence is based must be made part
of the record, so that the constitutional legitimacy of the
increased sentence may be fully reviewed on appeal."
Id. at
395 U. S.
726.
Whether this formulation allowed a sentencing judge to rely on
any event occurring after a defendant's first sentencing, or only
on actual "conduct" by the defendant since that time, might have
been open to some speculation, at least until
Wasman v. United
States, 468 U. S. 559
(1984), resolved that "matter of semantics,"
id. at
468 U. S. 573
(POWELL, J., concurring in part and concurring in judgment). But
the Court was quite clear that the conduct or event used to justify
an increased
Page 475 U. S. 153
sentence must have taken place after the original sentencing
proceeding. Indeed, the majority's insistence upon this restriction
led to the refusal of JUSTICE WHITE to subscribe to one part of the
Court's opinion. He wrote:
"I join the Court's opinion, except that, in my view, Part II-C
should authorize an increased sentence on retrial based on any
objective, identifiable factual data not known to the trial judge
at the time of the original sentencing proceeding."
Pearce, 395 U.S. at
395 U. S. 751
(concurring in part).
The Court's rejection of the standard proposed by JUSTICE WHITE
is no doubt explained by the majority's desire to "protect against
reasonable apprehension of vindictiveness that could deter a
defendant from appealing a first conviction."
Wasman, 468
U.S. at
468 U. S. 574
(POWELL, J., concurring in part and concurring in judgment). As a
majority of the Court recently recognized, the need to eliminate
this apprehension was as much a concern of the Court in
Pearce as actual vindictiveness.
See 468 U.S. at
468 U. S. 574;
ibid. (BRENNAN, J., concurring in judgment);
ibid. (STEVENS, J., concurring in judgment). Recognizing
that, in the course of any retrial or merely by virtue of the
passage of time, new information relating to events prior to a
defendant's original sentencing would become available to a
sentencer after retrial, the Court decided that allowing this
information to justify a harsher sentence would make the intended
guarantee of fairness sound quite hollow to the defendant deciding
whether to pursue his statutory right of appeal.
B
By finding the reasons given by Judge Harney adequate to rebut a
presumption of vindictiveness, the majority not only disregards the
clear rule in
Pearce. It announces a new regime in which
the "chill" that plagued defendants in the days before
Pearce will once again be felt by those deciding whether
to contest their convictions.
Page 475 U. S. 154
I do not doubt Judge Harney's assertions that the testimony of
Carolyn Sue Hollison McCullough and Willie Lee Brown strengthened
the prosecution's case against McCullough by corroborating evidence
and testimony that had already been produced at his first trial and
by adding a few brush strokes to the portrayal in the first
proceeding of McCullough's role in the crime and of his character.
However,
"[i]n the natural course of events upon the retrial of a case,
one might normally expect the Government to have available
additional testimony and evidence of a defendant's guilt, if for no
other reason than that the Government has had additional time to
prepare and refine its presentation."
United States v. Tucker, 581 F.2d 602, 606, n. 8 (CA7
1978). That such new evidence will be available to a trial judge
sentencing a defendant after a retrial is thus inevitable. And if
that judge wishes to punish defendant for having asserted his right
to a fair trial, she will always be able to point to that new
information as the basis for any increase in defendant's sentence
the second time around. As one authority has noted:
"If a court on retrial could justify an increased sentence on
the ground that it now had additional knowledge concerning the
defendant's participation in the offense, then the
Pearce
limitation could be evaded in almost every case."
3 W. LaFave & J. Israel, Criminal Procedure 176 (1984). This
limitation would be even more easily avoided if a trial judge could
rebut a presumption of vindictiveness merely by indicating that she
would have given defendant a harsher sentence at his first trial
had she been given the chance. That leaves, as the only "new"
information to support 30 additional years' imprisonment, the fact
that, between his two trials, McCullough did not evince a desire to
rehabilitate himself. Surely something more is required.
There is neither any reason nor any need for us to believe that
dishonest and unconstitutionally vindictive judges actually hold
sway in American courtrooms, and even less call for us to doubt the
integrity of Judge Harney. The message of
Page 475 U. S. 155
Pearce is that the fear of such vindictiveness is real
enough. And a defendant plagued by such an apprehension is likely
to take small comfort in any presumption of vindictiveness
established for his benefit if the means of rebutting that
presumption will always be within the easy reach of the judge who
will sentence him should the challenge to his conviction prove
unsuccessful. As far as defendants are concerned, today's decision,
by permitting references to new, often cumulative, information
about the crime charged to satisfy
Pearce's demand for
"objective information concerning identifiable conduct on the part
of the defendant," 395 U.S. at
395 U. S. 726,
nullifies the guarantee held out in
Pearce.
Persuaded by the Solicitor General's hypothetical involving a
defendant whose prior convictions are not apparent to the trial
judge until after defendant's appeal and retrial, the majority
concludes that
"[r]estricting justifications for a sentence increase to
only 'events that occurred subsequent to the original
sentencing proceedings' could in some circumstances lead to absurd
results."
Ante at
475 U. S. 141.
However, this objection to such a restriction was considered in
Pearce and rejected there, as it should be here. As one
amici curiae brief advised the
Pearce Court:
"In the unlikely event that some prior offense escaped the
notice of the court when the accused was under consideration for
sentencing, moreover, the government is free to bring a separate
proceeding under its habitual offender (recidivism) acts. To the
little extent that states may be concerned that sentences generally
tend to be imposed in some instances without due consideration of
the nature of the offense or the character of the accused,
moreover, each state is constitutionally free to make ample
provision for staffing and presentence reports to guard against
unduly lenient sentencing to whatever extent that government feels
to be appropriate. Indeed, each state presumably has done this to
the precise extent that it has been genuinely concerned with the
securing
Page 475 U. S. 156
of sentences which are both fair to the accused and adequate for
the public safety."
Brief for American Civil Liberties Union
et al. as
Amici Curiae in
North Carolina v. Pearce, O.T.
1968, No. 413, pp. 9-10.
IV
A lot has happened since the final day of the October, 1968
Term, the day
North Carolina v. Pearce was handed down.
But nothing has happened since then that casts any doubt on the
need for the guarantee of fairness that this Court held out to
defendants in
Pearce. The majority today begins by denying
respondent the promise of that guarantee, even though his case
clearly calls for its application. The Court then reaches out to
render the guarantee of little value to an defendants, even to
those whose plight was the explicit concern of the
Pearce
Court in 1969. To renege on the guarantee of
Pearce is
wrong. To do so while pretending not to is a shame. I dissent.