On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S. 153, 231-241,
2973- 2977 (1976) (MARSHALL, J., dissenting), I would grant the
petition for writ of certiorari. Even if I did not hold this view,
I would grant the petition in order to resolve the question whether
the State may, consistent with the Eighth and Fourteenth Amend-
Page 484 U.S.
935 , 936
ments, introduce evidence of unadjudicated criminal conduct at
the punishment phase of a capital trial. This claim presents a
serious constitutional issue that has provoked a number of
conflicting court decisions nationwide. The petition also presents
a second question worthy of our review, namely, whether a State
violates the Equal Protection Clause when it permits the sentencer
to consider evidence of unadjudicated offenses in capital cases but
not in noncapital cases.
I
Petitioner James Williams was sentenced to death under a Texas
capital punishment statute that requires the jury to determine
beyond a reasonable doubt that the defendant, if permitted to live,
would commit criminal acts of violence that would constitute a
continuing threat to society. See Tex.Crim.Proc.Code.Ann., Art.
37.071(b)(2) (Vernon Supp. 1986-1987). To prove this circumstance,
the State relied in large part on eyewitness testimony that
petitioner had participated in a restaurant robbery 10 days before
the murder. Petitioner never had been charged with, much less
convicted of, this crime. The court did not caution the jury that
it had to find petitioner had committed the crime by any particular
standard of proof before considering the evidence in its
calculation of future dangerousness. Indeed, the jury was
encouraged not to do so by the State's attorney, who stated:
"You don't have to go back there and
find him guilty of [the robbery ]. You don't have to write a
verdict for that. This is here to let you see what he did ten days
prior." Pet. for Cert. at 4.
In his federal petition for a writ of habeas corpus, petitioner
argued that Texas' sentencing scheme violates the Eighth and
Fourteenth Amendments because it permits the introduction of
evidence of unadjudicated criminal conduct at the sentencing
hearing of a capital trial. Williams also contended, in the
alternative, that Texas' sentencing scheme violates the Equal
Protection Clause of the Fourteenth Amendment because the State
permits the introduction of unadjudicated offenses in
capital-sentencing trials while forbidding the use of such evidence
in noncapital-sentencing proceedings, see Jones v. State,
479
S.W.2d 307 (Tex.Crim.App.1972). The Court of Appeals for the
Fifth Circuit rejected both claims.
814 F.2d
205 (1987).
Page 484 U.S.
935 , 937
II
Whether a State may introduce evidence of unadjudicated offenses
in the sentencing phase of a capital trial is a vexing question
with respect to which the state courts are in considerable need of
guidance. The courts that have considered the question have
provided inconsistent responses. A number have held that a State
may not introduce evidence of unadjudicated crimes to prove a
statutory aggravating factor at the sentencing phase of a capital
trial. See State v. Bobo,
727
S.W.2d 945, 952-953 (Tenn.1987), cert. denied, 484 U.S. 872;
State v. Bartholomew,
101 Wash. 2d
631, 640-642,
683 P.2d
1079, 1085- 1086 (1984) (en banc); State v. McCormick, 272 Ind.
272, 277-278,
397 N.E.2d
276, 280 (1979); Cook v. State,
369 So.
2d 1251, 1257 (Ala.1978). Other state courts have held that
although evidence of unadjudicated crimes is inadmissible to prove
that the criminal act took place, such evidence is admissible to
show "defendant's characteristics," State v. Skipper, 285 S.C. 42,
48-49,
328 S.E.2d
58, 62 (1985), rev'd on other grounds,
476 U.S. 1 (1986), or "
'other matter[s] which the court deems relevant to sentence.' "
Crump v. State, 102 Nev. 158, 161,
716 P.2d 1387,
1388-1389 (quoting Nev.Rev.Stat. 175. 552 (1986)), cert. denied,
479 U.S. 870 ( 1986). At least one state court has indicated that
unadjudicated-crimes evidence may be admitted, but only if the
court instructs the jury that it must find beyond a reasonable
doubt that the defendant committed the crime before it can use the
evidence in its sentencing determinations. See People v. Easley,
33 Cal. 3d 65,
187 Cal. Rptr. 745, 758-761, 654 P.2d 1272, 1286-1288 (1982),
vacated on other grounds,
34 Cal. 3d
858,
196 Cal. Rptr.
309,
671 P.2d 813
(1983). Still others, including Texas, have found that that the
admission of such evidence is not of constitutional significance
and have required merely that the evidence be relevant. See Milton
v. State,
599
S.W.2d 824, 827 (Tex.Crim.App.1980) (en banc), cert. denied,
451 U.S. 1031 (1981); Fair v. State, 245 Ga. 868, 870-871,
268 S.E.2d
316, 319-320, cert. denied, 449 U.S. 986 (1980).
As Texas' prohibition against the use of unadjudicated offenses
in noncapital cases suggests, the use of such evidence at
sentencing is at tension with the fundamental principle that a
person not be punished for a crime that the state has not shown he
committed. In the context of capital sentencing, this tension
becomes irreconcilable. This Court has repeatedly stressed that
because the death penalty is qualitatively different from any other
crimi-
Page 484 U.S.
935 , 938
nal punishment, "there is a corresponding difference in the need
for reliability in the determination that death is the appropriate
punishment in a specific case." Woodson v. North Carolina,
428 U.S.
280, 305, 96 S. Ct. 2978, 2991 (1976) (opinion of Stewart,
Powell, and STEVENS, JJ.). In my view, imposition of the death
penalty in reliance on mere allegations of criminal behavior fails
to comport with the constitutional requirement of reliability. A
conviction signals that the underlying criminal behavior has been
proved beyond a reasonable doubt to the satisfaction of an unbiased
jury in conformance with constitutional safeguards. The testimony
on which the State relied in this case, by contrast, carries with
it no similar indicia of reliability.
It could be argued that the reliability problem can be mitigated
by instructing the jury to consider evidence of unadjudicated
offenses only if it finds beyond a reasonable doubt that the
defendant committed the crime. This approach concedes that the
Constitution requires a jury to determine that the alleged criminal
conduct actually occurred. Once this concession is made, however,
the intractability of such an approach becomes apparent. For if a
defendant has a right to have a jury find that he committed a crime
before it uses evidence of that crime to sentence him to die, he
has a right that the jury that makes the determination be
impartial. A jury that already has concluded unanimously that the
defendant is a first-degree murderer cannot plausibly be expected
to evaluate charges of other criminal conduct without bias and
prejudice. Several state courts have concluded for this reason that
introduction of evidence of unadjudicated offenses violates a
defendant's due process right to an impartial jury. See State v.
Bobo, supra, at 952-953; State v. Bartholomew, supra, 101 Wash.2d,
at 640-642, 683 P.2d, at 1085-1086; State v. McCormick, supra; Cook
v. State, supra, at 1257.
In Williams v. New York,
337 U.S. 241 ( 1949),
this Court let stand the imposition of the death penalty by a judge
who had received evidence of unadjudicated offenses, reasoning that
death is no different from any other punishment. See id., at
251-252, 69 S. Ct. at 1085. In Gardner v. Florida,
430 U.S. 349, 357-358,
1204 (1977) (opinion of STEVENS, J.), however, it was recognized
that the view expressed in Williams no longer prevails, and that
the death penalty is qualitatively different from other
punishments. Since then, we have invalidated a number of procedural
rules that called into question the reliability of the sentencing
determination. See Beck v. Ala-
Page 484 U.S.
935 , 939
bama,
447 U.S.
625, 638, 2390 (1980) ( citing cases). In my view, the Court's
jurisprudence in this area raises serious doubts as to whether a
State may ever, consistent with the Eighth and Fourteenth
Amendments, introduce evidence of unadjudicated crimes at the
sentencing phase of a capital trial. In any event, it appears
beyond dispute that the issue is both significant and recurring,
and one on which the lower courts are in disarray. I would grant
the petition for certiorari to resolve this pressing question.
III
The State's use of evidence of unadjudicated offenses is
particularly disturbing because Texas generally forbids the use of
such evidence in sentencing determinations for non- capital crimes,
reasoning that the evidence poses too great a danger of undue
prejudice and confusion. See Jones v. State,
479
S.W.2d 307 (Tex.Crim.App.1972). Williams argues that Texas'
practice of not adhering to this practice during capital sentencing
violates the Equal Protection Clause. The Court of Appeals rejected
this claim, reasoning that "[g]iven the finality of a death
sentence, Texas has a strong interest in ensuring that all relevant
evidence concerning the capital defendant is placed before the jury
so that it can consider the evidence when answering the special
issues." 814 F.2d, at 208. I can think of no constitutionally
legitimate reason why evidence of unadjudicated offenses should be
admissible in capital cases but not in other cases. The decision of
the Court of Appeals sanctions a reduction of procedural protection
for the very reason that the defendant's life is at stake. This
conclusion cuts sharply against the grain of this Court's capital
jurisprudence. Recognizing the greater finality and severity of the
death penalty, we have repeatedly scrutinized and enhanced the
procedural protections afforded a defendant in a capital-sentencing
proceeding. See Eddings v. Oklahoma,
455 U.S. 104, 117-118,
878 (1982) (O'CONNOR, J., concurring) ("Because sentences of death
are 'qualitatively different' from prison sentences, this Court has
gone to extraordinary measures to ensure that the prisoner
sentenced to be executed is afforded process that will guarantee,
as much as is humanly possible, that the sentence was not imposed
out of whim, passion, prejudice, or mistake") (citation omitted);
Ake v. Oklahoma,
470 U.S.
68, 87, 1099 (1985) (Burger, C.J., concurring in judgment) ("In
capital cases the finality of the sentence imposed warrants
protections that may or may not be required in other cases").
Page 484 U.S.
935 , 940
Texas' sentencing system adopts precisely the converse
reasoning; it singles out capital defendants for less procedural
protection. This diminution of safeguards for capital defendants
only is both perverse and at odds with the decisions of this Court.
I therefore would grant the petition for certiorari in order to
consider Williams' equal protection claim should this Court reject
his more sweeping attack on Texas' sentencing procedures.