Texas v. McCullough , 106 S. Ct. 976 ( 1986 )

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 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 [sic] getting a harsher sentence in a new trial.” Amarillo Daily News, Oct. 7, 1980, p. C-l, col. 1; 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 Har-ney 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 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 life style, 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.

I — I I — I

A

At the outset, one must reject the majority’s suggestion, ante, at 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 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 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 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 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 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 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).

I — I HH b — (

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 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 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 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 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 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 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 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 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.

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 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 726, nullifies the guarantee held out in Pearce.

Persuaded by the Solicitor General’s hypothetical involving a defendant whose prior convictions are not apparant 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 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 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.

H-⅜ <

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 all 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.