Payne v. Tennessee

Sup. Ct. Tenn. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted. In addition to the questions presented by the petition, the parties are requested to brief and argue whether Booth v. Maryland, 482 U. S. 496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989), should be overruled. Petitioner’s opening brief is to be served and filed with the Clerk on or before March 18, 1991. Respondent’s brief is to be served and filed with the Clerk on or before April 8, 1991. The case is set for oral argument during the April session.

Justice Stevens,

with whom Justice Marshall and Justice Blackmun join,

dissenting.

In my opinion, the Court’s decision to expedite the consideration of this case and to ask the parties to address whether we should overrule Booth v. Maryland, 482 U. S. 496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989), a question presented neither in the petition for certiorari nor in the response, is both unwise and unnecessary. Cf. Patterson v. McLean Credit Union, 485 U. S. 617, 622-623 (1988) (Stevens, J., dissenting). Moreover, the Court’s decision to review the alleged Booth error in this case would be inappropriate in any event because the decision below rested alternatively on the ground that any Booth violation that might have occurred was harmless beyond a reasonable doubt.

See 791 S. W. 2d 10, 19 (Tenn. 1990).

Accordingly, I respectfully dissent.