479 U.S. 903 (1986)

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U.S. Supreme Court

BOLIEK v. MISSOURI , 479 U.S. 903 (1986)

479 U.S. 903

William Theodore BOLIEK, Jr.
No. 85-7087

Supreme Court of the United States

October 14, 1986

On petition for writ of certiorari to the Supreme Court of Missouri.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting from denial of certiorari.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Missouri insofar as it left undisturbed the death

Page 479 U.S. 903 , 904

sentence imposed in this case. Gregg v. Georgia, 428 U.S. 153, 231, 96 S. Ct. 2909, 2973 (1976) (MARSHALL, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I nevertheless would grant certiorari because this petition presents an important issue concerning the application of the Confrontation Clause of the Sixth Amendment.

Petitioner William Theodore Boliek, Jr., was charged with the murder of Jody Harless. The State alleged that Boliek shot Harless twice, once in the stomach and once in the head, in order to prevent her from testifying about a robbery in which she had been an accomplice. Boliek admitted that he had fired the first, non-fatal shot, which he claimed was an accident; he contended that the second and fatal shot had been fired by Vernon Wait, another of the participants in the robbery. At petitioner's trial the State produced two witnesses to whom Jody Harless had said, in the days immediately preceding her death, that she was afraid petitioner was going to kill her. In his summation, the prosecutor told the jury, "Jody Harless, one of her last words was 'Ted Boliek's gonna blow my head off.' And he did it." Pet. for Cert. 5.

The Missouri Supreme Court rejected petitioner's contention that it was reversible error to admit this evidence. State v. Boliek, 706 S.W.2d 847 (Mo.1986). The Court held the evidence admissible under the hearsay exception for statements of the declarant's present mental condition. Id., at 850. One judge dissented from this holding, taking the position that the statements were not admissible because the victim's state of mind was not material to the State's case. Petitioner contends that the admission of this hearsay violated his rights under the Confrontation Clause.

In Ohio v. Roberts, 448 U.S. 56 (1980 ), this Court held that the statement of an unavailable declarant "is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Id., at 66. The State contends that the challenged evidence met this standard because the statements were admitted under a recognized hearsay exception. Missouri has not codified its law of evidence, and while it has been said that "[u] nder Missouri law the declarations of a decedent in a homicide case are admissible to prove the decedent's state of mind where that is relevant," Lenza v. Wyrick, 665 F.2d 804, 810 (CA8 1981), the Mis- [479 U.S. 903 , 905]

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