Petitioner was convicted in a Mississippi court of murder.
Finding the existence of three aggravating circumstances and that
such circumstances outweighed the mitigating circumstances, the
jury sentenced petitioner to death. The sole evidence supporting
one of the aggravating circumstances -- that petitioner had been
"previously convicted of a felony involving the use or threat of
violence to [another] person" -- consisted of an authenticated copy
of his commitment to prison in 1963 following his New York
conviction of second-degree assault with intent to commit
first-degree rape. The prosecutor repeatedly referred to the
commitment document at the sentencing hearing. After the
Mississippi Supreme Court affirmed petitioner's death sentence, the
New York Court of Appeals reversed the 1963 conviction. However,
the Mississippi Supreme Court denied petitioner's motion for
postconviction relief from the death sentence, arguing,
inter
alia, that (1) petitioner had waived his right to challenge
the New York conviction by not raising the point on direct appeal
of his death sentence; (2) Mississippi's capital sentencing
procedures could be rendered capricious and standardless if the
post-sentencing decision of another State could invalidate a
Mississippi death sentence; and (3) the New York conviction
provided adequate support for the death penalty even if it was
invalid, since petitioner had served time on the conviction.
Held: By allowing petitioner's death sentence to stand
despite the fact that it was based in part on the vacated New York
conviction, the Mississippi Supreme Court violated the Eighth
Amendment's prohibition against cruel and unusual punishment. Pp.
486 U. S.
584-590.
(a) The New York conviction did not provide any legitimate
support for petitioner's sentence. Its reversal deprives the
prosecutor's sole piece of evidence as to the aggravating
circumstance of any relevance to the sentencing decision. The fact
that petitioner served time in prison pursuant to an invalid
conviction does not make the conviction itself relevant, or prove
that petitioner was guilty of the crime. Furthermore, use of the
New York conviction in the sentencing hearing was clearly
prejudicial, since the prosecutor repeatedly urged the jury to give
it
Page 486 U. S. 579
weight in connection with its assigned task of balancing
aggravating and mitigating circumstances "one against the other."
Pp.
486 U. S.
585-586.
(b) The state court's concern that its vacatur of the death
sentence here would render its capital sentencing procedures
capricious is unfounded. That court has itself held that the
reversal of a Kentucky conviction supporting an enhanced sentence
under Mississippi's habitual criminal statute justified
postconviction relief.
Phillips v. State, 421 So. 2d
476. A rule that regularly gives a defendant the benefit of
such relief is not even arguably arbitrary or capricious and, in
fact, reduces the risk that a capital sentence will be imposed
arbitrarily. Pp.
486 U. S.
586-587.
(c) The state court's conclusion that petitioner's failure to
raise his claim on direct appeal constitutes a procedural bar under
state law does not prevent this Court from considering the claim.
Under federal law, such a bar can constitute an adequate and
independent state ground for affirming a sentence only if it has
been consistently or regularly applied. The bar raised here has not
been so applied in Mississippi. In
Phillips v. State,
supra, the Mississippi Supreme Court held that collateral
attack, rather than direct appeal, was the appropriate means of
challenging a prior conviction used to enhance a habitual
offender's sentence, and the Mississippi Supreme Court recently has
applied that reasoning to facts substantially similar to those
presented in this case.
See Nixon v. State, 533
So. 2d 1078. Pp.
486 U. S.
587-589.
(d) The State's argument that the decision below should be
affirmed because the state court did not mention the New York
conviction when it conducted its proportionality review of the
death sentence on direct appeal is without merit, since the fact
that the sentence might be consistent with Mississippi law, even
absent evidence of the New York conviction, is not determinative
here. The error here extended beyond the mere invalidation of an
aggravating circumstance supported by otherwise admissible
evidence, since the jury was allowed to consider evidence that has
been revealed to be materially inaccurate. Moreover, the state
court's express refusal to rely on harmless error analysis in
upholding petitioner's sentence was plainly justified on the facts
of this case. Pp.
486 U. S.
589-590.
511
So. 2d 1333, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, SCALIA,
and KENNEDY, JJ., joined. BRENNAN, J., filed a concurring opinion,
in which MARSHALL, J., joined,
post, p.
486 U. S. 591.
WHITE, J., filed a concurring opinion, in which REHNQUIST, C.J.,
joined,
post, p.
486 U. S. 591.
O'CONNOR, J., concurred in the judgment.
Page 486 U. S. 580
JUSTICE STEVENS delivered the opinion of the Court.
In 1982, petitioner was convicted of murder and sentenced to
death. The sentence was predicated, in part, on the fact that
petitioner had been convicted of a felony in New York in 1963.
After the Mississippi Supreme Court affirmed petitioner's death
sentence, the New York Court of Appeals reversed the 1963
conviction. Petitioner thereafter unsuccessfully sought
postconviction relief from the Mississippi Supreme Court. The
question presented to us is whether the state court was correct in
concluding that the reversal of the New York conviction did not
affect the validity of a death sentence based on that
conviction.
I
On December 31, 1981, petitioner and three companions were
stopped for speeding by a Mississippi highway patrolman. While the
officer was searching the car, petitioner stabbed him and, in the
ensuing struggle, one of his companions obtained the officer's gun
and used it to kill him. Petitioner was apprehended, tried and
convicted of murder, and sentenced to death. At the conclusion of
the sentencing
Page 486 U. S. 581
hearing, the jury found three aggravating circumstances,
[
Footnote 1] any one of which,
as a matter of Mississippi law, would have been sufficient to
support a capital sentence. After weighing mitigating circumstances
and aggravating circumstances "one against the other," the jury
found
"that the aggravating circumstances do outweigh the mitigating
circumstances, and that the Defendant should suffer the penalty of
death."
13 Record 2290, 2294; App. 32. The Mississippi Supreme Court
affirmed the conviction and sentence,
Johnson v.
State, 477 So. 2d
196 (1985), and we denied certiorari, 476 U.S. 1109 (1986).
The sole evidence supporting the aggravating circumstance that
petitioner had been "previously convicted of a felony involving the
use or threat of violence to the person of another" consisted of an
authenticated copy of petitioner's commitment to Elmira Reception
Center in 1963 following his conviction in Monroe County, New York,
for the crime of second-degree assault with intent to commit
first-degree rape. App. 8-9. The prosecutor repeatedly referred to
that evidence in the sentencing hearing, stating in so many words:
"I say that, because of having been convicted of second degree
assault with intent to commit first degree rape and capital murder,
that Samuel Johnson should die." 13 Record 2276; App. 23. [
Footnote 2]
Page 486 U. S. 582
Prior to the assault trial in New York in 1963, the police
obtained an incriminating statement from petitioner. Despite
petitioner's objection that the confession had been coerced, it was
admitted into evidence without a prior hearing on the issue of
voluntariness. Moreover, after petitioner was convicted, he was
never informed of his right to appeal. He made three efforts to do
so without the assistance of counsel, each of which was rejected as
untimely. After his Mississippi conviction, however, his attorneys
successfully prosecuted a post-conviction proceeding in New York in
which they persuaded the Monroe County Court that petitioner had
been unconstitutionally deprived of his right to appeal. The County
Court then entered a new sentencing order from which petitioner was
able to take a direct appeal. In that proceeding, the New York
Court of Appeals reversed his conviction. [
Footnote 3]
People v. Johnson, 69
N.Y.2d 339, 506 N.E.2d 1177 (1987).
Page 486 U. S. 583
Petitioner filed a motion in the Mississippi Supreme Court
seeking postconviction relief from his death sentence on the ground
that the New York conviction was invalid and could not be used as
an aggravating circumstance. That motion was filed before the New
York proceeding was concluded, but it was supplemented by prompt
notification of the favorable action taken by the New York Court of
Appeals. Nevertheless, over the dissent of three justices, the
Mississippi Supreme Court denied the motion.
511
So. 2d 1333 (1987).
The majority supported its conclusion with four apparently
interdependent arguments. First, it stated that petitioner had
waived his right to challenge the validity of the New York
conviction because he had not raised the point on direct appeal.
[
Footnote 4] Second, it
expressed concern that Mississippi's capital sentencing procedures
would become capricious and standardless if the post-sentencing
decision of another State could have the effect of invalidating a
Mississippi death sentence.
Id. at 1338. Third, it
questioned whether the New York proceedings were "truly
adversarial."
Id. at 1338-1339. Finally, it concluded that
the New York conviction provided adequate support for the death
penalty even if it was invalid, stating:
"The fact remains that Johnson was convicted in 1963 by a New
York court of a serious felony involving violence to a female for
which he was imprisoned in that state. No New York court extended
Johnson relief from his conviction before Johnson paid his debt to
the state. If his crime was serious enough for him to be convicted
and
Page 486 U. S. 584
final enough for him to serve time in a penal institution, it
had sufficient finality to be considered as an aggravating
circumstance by a jury of this state. No death penalty verdict
based upon this conviction need be vitiated by the subsequent
relief granted more than twenty years later by the New York Court
of Appeals."
Id. at 1339. In reaching this conclusion, the court
expressly disavowed any reliance on the fact that two of the
aggravating circumstances found by the jury did not turn on the
evidence of petitioner's prior conviction.
Id. at 1338;
see n 8,
infra. [
Footnote
5]
We granted certiorari to consider whether the Federal
Constitution requires a reexamination of petitioner's death
sentence. 484 U.S. 1003 (1988). We conclude that it does.
II
The fundamental respect for humanity underlying the Eighth
Amendment's prohibition against cruel and unusual punishment gives
rise to a special "
need for reliability in the determination
that death is the appropriate punishment'" in any capital case.
See Gardner v. Florida, 430 U. S. 349,
430 U. S.
363-364 (1977) (quoting Woodson v. North
Carolina, 428 U. S. 280,
428 U. S. 305
(1976)) (WHITE, J., concurring in judgment). Although we have
acknowledged that "there can be `no perfect
Page 486 U. S. 585
procedure for deciding in which cases governmental authority
should be used to impose death,'" we have also made it clear that
such decisions cannot be predicated on mere "caprice" or on
"factors that are constitutionally impermissible or totally
irrelevant to the sentencing process."
Zant v. Stephens,
462 U. S. 862,
462 U. S.
884-885,
462 U. S. 887,
n. 24 (1983). The question in this case is whether allowing
petitioner's death sentence to stand, although based in part on a
reversed conviction, violates this principle. [
Footnote 6]
In its opinion, the Mississippi Supreme Court drew no
distinction between petitioner's 1963 conviction for assault and
the underlying conduct that gave rise to that conviction. In
Mississippi's sentencing hearing following petitioner's conviction
for murder, however, the prosecutor did not introduce any evidence
concerning the alleged assault itself; the only evidence relating
to the assault consisted of a document establishing that petitioner
had been convicted of that offense in 1963. Since that conviction
has been reversed, unless and until petitioner should be retried,
he must be presumed innocent of that charge. Indeed, even without
such a presumption, the reversal of the conviction deprives the
prosecutor's sole piece of documentary evidence of any relevance to
Mississippi's sentencing decision.
Contrary to the opinion expressed by the Mississippi Supreme
Court, the fact that petitioner served time in prison
Page 486 U. S. 586
pursuant to an invalid conviction does not make the conviction
itself relevant to the sentencing decision. The possible relevance
of the conduct which gave rise to the assault charge is of no
significance here, because the jury was not presented with any
evidence describing that conduct -- the document submitted to the
jury proved only the facts of conviction and confinement, nothing
more. That petitioner was imprisoned is not proof that he was
guilty of the offense; indeed, it would be perverse to treat the
imposition of punishment pursuant to an invalid conviction as an
aggravating circumstance.
It is apparent that the New York conviction provided no
legitimate support for the death sentence imposed on petitioner. It
is equally apparent that the use of that conviction in the
sentencing hearing was prejudicial. The prosecutor repeatedly urged
the jury to give it weight in connection with its assigned task of
balancing aggravating and mitigating circumstances "one against the
other." 13 Record 2270; App. 17;
see 13 Record 2282-2287;
App. 26-30. Even without that express argument, there would be a
possibility that the jury's belief that petitioner had been
convicted of a prior felony would be "decisive" in the "choice
between a life sentence and a death sentence."
Gardner v.
Florida, supra, at
430 U. S. 359
(plurality opinion).
We do not share the Mississippi Supreme Court's concern that its
procedures would become capricious if it were to vacate a death
sentence predicated on a prior felony conviction when such a
conviction is set aside. A similar problem has frequently arisen in
Mississippi, as well as in other States, in cases involving
sentences imposed on habitual criminals. Thus, in
Phillips v.
State, 421 So. 2d
476 (Miss.1982), the court held that the reversal of a Kentucky
conviction that had provided the basis for an enhanced sentence
pursuant to Mississippi's habitual criminal statute justified
postconviction relief. A rule that regularly gives a defendant the
benefit of such postconviction relief is not even arguably
arbitrary or capricious.
Cf. 404 U. S.
Tucker,
Page 486 U. S. 587
404 U. S. 443
(1972);
Townsend v. Burke, 334 U.
S. 736 (1948). To the contrary, especially in the
context of capital sentencing, it reduces the risk that such a
sentence will be imposed arbitrarily.
Finally, we are not persuaded that the state court's conclusion
that, under state law, petitioner is procedurally barred from
raising this claim because he failed to attack the validity of the
New York conviction on direct appeal bars our consideration of his
claim. In its brief before this Court, the State does not rely on
the argument that petitioner's claim is procedurally barred because
he failed to raise it on direct appeal. Because the State Supreme
Court asserted this bar as a ground for its decision, however, we
consider whether that bar provides an adequate and independent
state ground for the refusal to vacate petitioner's sentence.
"[W]e have consistently held that the question of when and how
defaults in compliance with state procedural rules can preclude our
consideration of a federal question is itself a federal
question."
Henry v. Mississippi, 379 U. S. 443,
379 U. S. 447
(1965).
"[A] state procedural ground is not 'adequate' unless the
procedural rule is 'strictly or regularly followed.'
Barr v.
City of Columbia, 378 U. S. 146,
378 U. S.
149 (1964)."
Hathorn v. Lovorn, 457 U. S. 255,
457 U. S.
262-263 (1982);
see Henry v. Mississippi, 379
U.S. at
379 U. S.
447-448. We find no evidence that the procedural bar
relied on by the Mississippi Supreme Court here has been
consistently or regularly applied. Rather, the weight of
Mississippi law is to the contrary. In
Phillips v. State,
supra, the Mississippi Supreme Court considered whether
defendant could properly attack in a sentencing hearing a prior
conviction which the State sought to use to enhance his sentence.
The court made it clear that the sentencing hearing was not the
appropriate forum for such an attack:
"[T]he trial court is not required to go beyond the face of the
prior convictions sought to be used in establishing the defendant's
status as an habitual offender. If, on its face, the conviction
makes a proper showing that a
Page 486 U. S. 588
defendant's prior plea of guilty was both knowing and voluntary,
that conviction may be used for the enhancement of the defendant's
punishment under the Mississippi habitual offender act."
"
* * * *"
"[A]ny such frontal assault upon the constitutionality of a
prior conviction should be conducted in the form of an entirely
separate procedure solely concerned with attacking that conviction.
This role is neither the function nor the duty of the trial judge
in a hearing to determine habitual offender status. Likewise, any
such proceeding should be brought in the state in which such
conviction occurred, pursuant to that state's established
procedures. Should such proceeding in the foreign state succeed in
overturning the conviction, then relief should be sought in
Mississippi by petition for writ of error
coram
nobis."
Id. at
447 U. S.
481-482. The reasoning of
Phillips suggests
that the direct appeal of a subsequent conviction and concomitant
enhanced sentence is not the appropriate forum for challenging a
prior conviction that on its face appears valid. In directing that
evidence of invalidation of such a conviction in another proceeding
could be brought to the court's attention in a collateral attack of
the subsequent conviction, the court did not suggest that the
failure previously to raise the issue in the inappropriate forum
would bar its consideration on collateral attack.
The Mississippi Supreme Court has applied its reasoning in
Phillips to facts substantially similar to those presented
in this case. In
Nixon v. State, 533
So. 2d 1078 (1988), the court held that the reasoning of
Phillips applied when a defendant in a capital case sought
to attack the validity of a prior conviction introduced to support
the finding of an aggravating circumstance at sentencing. In light
of the Mississippi Supreme Court's decisions in
Phillips
and
Nixon, we cannot conclude that the procedural bar
relied on by the Mississippi
Page 486 U. S. 589
Supreme Court in this case has been consistently or regularly
applied. Consequently, under federal law, it is not an adequate and
independent state ground for affirming petitioner's conviction.
[
Footnote 7]
In this Court, Mississippi advances an argument for affirmance
that was not relied upon by the State Supreme Court. It argues that
the decision of the Mississippi Supreme Court should be affirmed
because, when that court conducted its proportionality review of
the death sentence on petitioner's initial appeal, it did not
mention petitioner's prior conviction in upholding the sentence.
Whether it is true, as respondent
Page 486 U. S. 590
argues, that, even absent evidence of petitioner's prior
conviction, a death sentence would be consistent with Mississippi's
practice in other cases, however, is not determinative of this
case. First, the Mississippi Supreme Court expressly refused to
rely on harmless error analysis in upholding petitioner's sentence,
511 So. 2d at 1338; on the facts of this case, that refusal was
plainly justified. [
Footnote 8]
Second, and more importantly, the error here extended beyond the
mere invalidation of an aggravating circumstance supported by
evidence that was otherwise admissible. Here the jury was allowed
to consider evidence that has been revealed to be materially
inaccurate. [
Footnote 9]
Accordingly, the judgment is reversed and the case is remanded
to the Mississippi Supreme Court for further proceedings not
inconsistent with this opinion.
It is so ordered.
Page 486 U. S. 591
[
Footnote 1]
The jury found the following aggravating circumstances:
"(1) That the defendant, Samuel Johnson, was previously
convicted of a felony involving the use or threat of violence to
the person of another."
"(2) That the defendant, Samuel Johnson, committed the capital
murder for the purpose of avoiding arrest or effecting an escape
from custody."
"(3) The capital murder was especially heinous, atrocious and
cruel."
Record 2289, 2294;
511
So. 2d 1333, 1337 (Miss.1987).
[
Footnote 2]
Petitioner's version of the assault is described in an affidavit
as follows:
"3. I have a good recollection of the facts concerning my 1963
conviction for assault second. Charles Taylor and I were in my
brother's car, which he loaned to me, in the early morning hours of
February 9, 1963. We picked up Malcena Doss after she was leaving
another car. Doss was a prostitute. After I had sex with her, I
told her I had no money to pay her, and refused to pay her, and she
got angry. She took down the number of the car, and later she told
the police that I attacked her. I didn't attack her."
App. 136-137 (affidavit of petitioner submitted to the County
Court for Monroe County, New York, in support of his motion to
vacate judgment of conviction).
[
Footnote 3]
The New York court first determined that the appeal was "timely"
in light of the "unusual circumstances of [petitioner's] case."
App. 96. The court pointed out that the State's actions had
deprived petitioner of his right to an earlier appeal:
"It is undisputed that defendant was never advised of his right
to appeal from the assault conviction, and that, upon discovering
that right, he made several timely and diligent
pro se
attempts to obtain review of the judgment through the avenues
available to him at the time. Further, it is undisputed that the
actions of this State prevented defendant from ever obtaining the
review of the conviction to which he was entitled."
Ibid. Relying on concessions made by the State, the
court then determined that all
"records of petitioner's trial [had] been lost, that neither
reconstruction nor a new trial [was] possible, and [that petitioner
had] raised appealable issues with possible merit."
Ibid. The court concluded in light of all the
circumstances that "the only available remedy . . . [was] vacatur
of the conviction and dismissal of the indictment."
Id. at
96-97.
[
Footnote 4]
The court stated:
"It is apparent that Johnson waived this claim, and it is
procedurally barred. At no time during his direct appeal or in his
petition for certiorari to the U.S. Supreme Court did he argue his
New York conviction was constitutionally invalid. Moreover, there
is nothing to suggest he took any steps to vacate this conviction
until he filed this petition. On appeal, . . . [n]one [of
petitioner's assignments of error] questioned the validity of his
New York conviction.
See Evans v. State, 485 So. 2d
276 (Miss.1986), at 280-281."
511 So. 2d at 1337.
[
Footnote 5]
Three justices dissented. Relying on the logic of
Phillips
v. State, 421 So. 2d
476 (Miss.1982), and the fact that there was
"no way of ascertaining with confidence whether the prior
conviction was a significant factor in the jury's determination
that [petitioner] should suffer the penalty of death,"
the dissenters concluded that when an "
aggravating' prior
conviction is vacated," "the defendant [is] entitled to relief from
his enhanced sentence." 511 So. 2d at 1344-1345 (Robertson, J.,
dissenting). They criticized the majority for giving the decision
of the New York Court of Appeals "less than full faith and credit,"
refusing themselves to "indulge in the cynical assumption that the
New York Court did less than its duty when it ordered
[petitioner's] 1963 conviction vacated." Id. at 1343-1344.
The dissenters rejected the majority's invocation of a procedural
bar, asserting that, under Mississippi law, petitioner had acted
properly in first seeking relief in the New York courts, and that
he had no basis for a claim in the Mississippi courts until he
obtained that relief. Id. at 1343.
[
Footnote 6]
Petitioner argues that the Mississippi court's skeptical
treatment of the New York Court of Appeals' decision violated the
Full Faith and Credit Clause of the United States Constitution.
Although we find no merit in the state court's expression of
concern about the adversarial character of the New York
postconviction proceedings, we do not address the full faith and
credit argument here, because we do not understand the Mississippi
Supreme Court's opinion to turn solely on its view of the validity
of the New York judgment. Indeed, most of its reasoning might well
be applied equally to the reversal of a prior Mississippi felony
conviction. In all events, it is clear on the record before us that
petitioner's death sentence is now predicated, in part, on a New
York judgment that is not valid now, and was not valid when it was
entered in 1963.
[
Footnote 7]
Relying on the State Supreme Court's citation of
Evans v.
State, 485 So. 2d
276, 280-281 (Miss.1986),
see n 4,
supra, the State urges that the
procedural bar invoked by the State Supreme Court here is distinct
from the procedural bar applied in
Phillips and
Nixon. The State argues that the Mississippi Supreme Court
was focused on petitioner's delay in attacking his 1963 conviction,
rather than on his failure to attack it in the Mississippi courts
on direct appeal of his capital conviction. We cannot read so much
into the citation of
Evans. In
Evans, the
Mississippi Supreme Court held that a claim of ineffective
assistance of counsel was procedurally barred because defendant had
failed to raise the issue in a prior petition for writ of error
coram nobis. In reaching this conclusion, the court was
merely enforcing Miss.Code Ann. ยง 99-39-21(1) (Supp.1987), which
provides that
"[f]ailure by a prisoner to raise objections, defenses, claims,
questions, issues or errors either in fact or law which were
capable of determination at trial and/or on direct appeal,
regardless of whether such are based on the laws and the
Constitution of the state of Mississippi or of the United States,
shall constitute a waiver thereof and shall be procedurally barred.
. . ."
485 So. 2d at 280. The citation to
Evans simply
supports our reading of the State Supreme Court's opinion to hold
that petitioner's claim was procedurally barred because he failed
to raise it in previous proceedings on direct appeal.
Our reading of the State Supreme Court's decision is further
supported by the reasoning of the dissent, which reflects a similar
understanding of the majority's discussion. In criticizing the
majority for engaging in a "recent and illicit romance with
procedural bars," 511 So. 2d at 1343 (Robertson, J., dissenting),
the dissent focused exclusively on the inconsistency between the
court's holding in
Phillips and its holding in
petitioner's case.
[
Footnote 8]
The court stated:
"As we noted, the jury found three aggravating circumstances
existed, and, of the three, we have little doubt that, in a
rational sentencing process, . . . the other two aggravating
circumstances would carry greater weight than the New York
conviction in determining Johnson's sentence. Indeed, the
remoteness in time of the prior conviction was a mitigating
circumstance.
Johnson v. State, 477 So. 2d at 219."
"We eschew 'harmless error' in our reasoning, however, because
the district attorney argued this particular aggravating
circumstance as a reason to impose the death penalty.
[
Ibid.]"
511 So. 2d at 1338. The transcript fully supports the majority's
decision, as well as the dissent's conclusion that petitioner's
prior conviction was "vigorously" argued to the jury as a basis for
imposing the death sentence.
Id. at 1342;
see 13
Record 2271-2287;
see supra at
486 U. S.
581.
[
Footnote 9]
In
Zant v. Stephens, 462 U. S. 862
(1983), we held that, on the facts of that case, the invalidation
of an aggravating circumstance did not, under Georgia's capital
sentencing scheme, require vacation of the death sentence. In
reaching this holding, we specifically relied on the fact that the
evidence adduced in support of the invalid aggravating circumstance
was nonetheless properly admissible at the sentencing hearing.
Id. at
462 U. S.
887.
JUSTICE O'CONNOR concurs in the judgment.
I join the Court's opinion except insofar as the judgment, which
is without prejudice to further sentencing proceedings, does not
expressly preclude the reimposition of the death penalty. 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,
428 U. S. 227
(1976), I would direct that the resentencing proceedings be
circumscribed such that the State may not reimpose the death
sentence.
JUSTICE WHITE, with whom THE CHIEF JUSTICE joins,
concurring.
I join the Court's opinion, agreeing that the death sentence
cannot stand, given the introduction of inadmissible and
prejudicial evidence at the hearing before the jury. That evidence,
however, was irrelevant to the other two aggravating circumstances
found to be present, and I note that the case is remanded for
further proceedings not inconsistent with the Court's opinion. It
is left to the Mississippi Supreme Court to decide whether a new
sentencing hearing must be held or whether that court should itself
decide the appropriate sentence without reference to the
inadmissible evidence, thus undertaking to reweigh the two
untainted aggravating circumstances against the mitigating
circumstances.
Cf. Cabana v. Bullock, 474 U.
S. 376 (1986).