Marshall v. Lonberger , 103 S. Ct. 843 ( 1983 )

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 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.¹ On the other hand, if the respondent were found guilty of the Ohio murder, the evidence was certainly relevant to whether he should be given the death penalty.² The reason this ease 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 569 (Stewart, J., concurring). The Court acknowledged that prior-crimes evidence “is generally recognized to have potentiality for prejudice.” Id., at 560. Nevertheless, it held that this potentiality did not distinguish recidivist trials from other criminal trials in which prior-crime 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 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-crime 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 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 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 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,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 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, 445, 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 115, n. 7.⁴

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,⁵ the Court expressly overruled Delli Paoli. 391 U. S., at 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 129.⁶ Justice Stewart concurred, 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 Spencer1 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.

M HH

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 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.⁷ Nevertheless, he refused to bifurcate the proceeding.

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 that experimentation was still in progress. 385 U. S., at 566. Those facts are not true today. Bifurcated proceedings are now the rule in capital cases throughout the Nation.⁸ It is 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 prosecuto-rial interest in preserving a one-stage procedure — to enhance the likelihood that the jury will convict.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 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 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.

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 case¹⁰ 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.

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 475-476 (footnotes omitted).

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.

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 120.

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, 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 attemped, 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 575.

5 Justice White’s dissenting opinion was joined by Justice Harlan.

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 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 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 co-defendant 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 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 438-439, n. 6.

7 The judge’s instructions 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 lili-nois 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.

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-l(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:ll-3.c (West 1982); 1982 N. J. Laws, ch. Ill; 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).

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 n. 6, supra, highlights this conclusion.

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 certio-rari, 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.