author: Justice Blackmun Justice Kennedy,

text:
    MICHIGAN v. CHESTERNUT
    No. 86-1824.
    Argued February 24, 1988
    Decided June 13, 1988

      Blackmun, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, in which Scalia, J., joined, post, p. 576.

      Andrea L. Solak argued the cause for petitioner. With her on the briefs was Timothy A. Baughman.

      Carole M. Stanyar argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Weld, Deputy Solicitor General Bryson, and Paul J. Larkin, Jr.; and for the States of Alabama et al. by Michael W. Catalano and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Grace Berg Schaible of Alaska, John Steven Clark of Arkansas, John J. Kelly of Connecticut, Charles M. Oberly of Delaware, Robert Butterworth of Florida, Warren Price III of Hawaii, Jim Jones of Idaho, Neil F. Harti-gan of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, David L. Armstrong of Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, W. Cary Edwards of New Jersey, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Robert Henry of Oklahoma, Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, W. J. Michael Cody of Tennessee, David L. Wilkinson of Utah, Jeffrey Amestoy of Vermont, Mary Sue Terry of Virginia, Kenneth 0. Eikenberry of Washington, Charles G. Brown of West Virginia, Don J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming.

        Nancy Hollander and David A. Freeman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

        Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, Courtney A. Evans, and Daniel B. Hales filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae.

   Justice Blackmun

delivered the opinion of the Court.

In this case we review a determination by the Michigan Court of Appeals that any “investigatory pursuit” of a person undertaken by the police necessarily constitutes a seizure under the Fourth Amendment of the Constitution. We conclude that the police conduct in this case did not amount to a seizure, for it would not have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.

I

Early on the afternoon of December 19, 1984, four officers riding in a marked police cruiser were engaged in routine patrol duties in Metropolitan Detroit. As the cruiser came to an intersection, one of the officers observed a car pull over to the curb. A man got out of the car and approached respondent Michael Mose Chesternut, who was standing alone on the corner. When respondent saw the patrol car nearing the comer where he stood, he turned and began to run. As Officer Peltier, one of those in the car, later testified, the patrol car followed respondent around the corner “to see where he was going.” App. 25. The cruiser quickly caught up with respondent and drove alongside him for a short distance. As they drove beside him, the officers observed respondent discard a number of packets he pulled from his right-hand pocket. Officer Peltier got out of the cruiser to examine the packets. He discovered that they contained pills. While Peltier was engaged in this inspection, respondent, who had run only a few paces farther, stopped. Surmising on the basis of his experience as a paramedic that the pills contained codeine, Officer Peltier arrested respondent for the possession of narcotics and took him to the station house. During an ensuing search, the police discovered in respondent’s hatband another packet of pills, a packet containing heroin, and a hypodermic needle. Respondent was charged with knowingly and intentionally possessing heroin, tablets containing codeine, and tablets containing diazepam, all in violation of Mich. Comp. Laws §333.7403(2) (1980).

At a preliminary hearing, at. which Officer Peltier was the only witness, respondent moved to dismiss the charges on the ground that he had been unlawfully seized during the police pursuit preceding his disposal of the packets. The presiding Magistrate granted the motion and dismissed the complaint. Relying on People v. Terrell, 77 Mich. App. 676, 259 N. W. 2d 187 (1977), the Magistrate ruled from the bench that a police “chase” like the one involved in this case implicated Fourth Amendment protections and could not be justified by the mere fact that the suspect ran at the sight of the police. App. 31-35. Applying a clearly-erroneous standard to the Magistrate’s ruling, the trial court upheld the dismissal order. Id., at 2-10.

The Michigan Court of Appeals “reluctantly” affirmed, 157 Mich. App. 181, 184, 403 N. W. 2d 74, 76 (1986), noting that “although we find the result unfortunate, we cannot say that the lower court’s ruling was clearly erroneous under the present law or the facts presented.” Id., at 183, 403 N. W. 2d, at 75. Like the courts below it, the Court of Appeals rested its ruling on state precedents interpreting the Fourth Amendment. The court determined, first, that any “investigatory pursuit” amounts to a seizure under Terry v. Ohio, 392 U. S. 1 (1968). “As soon as the officers began their pursuit,” the court explained, “defendant’s freedom was restricted.” 157 Mich. App., at 183, 403 N. W. 2d, at 75. The court went on to conclude that respondent’s flight from the police was insufficient, by itself, to give rise to the particularized suspicion necessary to justify this kind of seizure. Because “the police saw [respondent] do absolutely nothing illegal nor did they observe other suspicious activity,” the court determined that the investigatory pursuit had violated the Fourth Amendment’s prohibition against unreasonable seizures. Id., at 184, 403 N. W. 2d, at 76.

After the Michigan Supreme Court denied petitioner leave to appeal, App. to Pet. for Cert. 9a, petitioner sought review here. We granted a 'writ of certiorari, 484 U. S. 895 (1987), to consider whether the officers’ pursuit of respondent constituted a seizure implicating Fourth Amendment protections, and, if so, whether the act of fleeing, by itself, was sufficient to constitute reasonable suspicion justifying that seizure. Because we conclude that the officers’ conduct did not constitute a seizure, we need not reach the second question.

h — I i

A

Petitioner argues that the Fourth Amendment is never implicated until an individual stops in response to the police’s show of authority. Thus, petitioner would have us rule that a lack of objective and particularized suspicion would not poison police conduct, no matter how coercive, as long as the police did not succeed in actually apprehending the individual. Respondent contends, in sharp contrast, that any and all police “chases” are Fourth Amendment seizures. Respondent would have us rule that the police may never pursue an individual absent a particularized and objective basis for suspecting that he is engaged in criminal activity.

Both petitioner and respondent, it seems to us, in their attempts to fashion a bright-line rule applicable to all investigatory pursuits, have failed to heed this Court’s clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account “ ‘all of the circumstances surrounding the incident’ ” in each individual case. INS v. Delgado, 466 U. S. 210, 215 (1984), quoting United States v. Mendenhall, 446 U. S. 544, 554 (1980) (opinion of Stewart, J.). Rather than adopting either rule proposed by the parties and determining that an investigatory pursuit is or is not necessarily a seizure under the Fourth Amendment, we adhere to our traditional contextual approach, and determine only that, in this particular case, the police conduct in question did not amount to a seizure.

B

In Terry v. Ohio, the Court noted:

“Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 392 U. S., at 19, n. 16.

A decade later in United States v. Mendenhall, Justice Stewart, writing for himself and then Justice Rehnquist, first transposed this analysis into a test to be applied in determining whether “a person has been ‘seized’ within the meaning of the Fourth Amendment.” 446 U. S., at 554. The test provides that the police can be said to have seized an individual “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Ibid. The Court has since embraced this test. See INS v. Delgado, 466 U. S., at 215. See also Florida v. Royer, 460 U. S. 491, 502 (1983) (plurality opinion); id., at 514 (Blackmun, J., dissenting).

The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to “leave” will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs. Compare United States v. Mendenhall, supra (considering whether police request to see identification and ticket of individual who stopped upon police’s approach constituted seizure), with INS v. Delgado, supra (considering whether INS “factory survey” conducted while employees continued to move about constituted seizure of entire work force).

While the test is flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police. The test’s objective standard-looking to the reasonable man’s interpretation of the conduct in question — allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. 3 W. LaFave, Search and Seizure § 9.2(h), pp. 407-408 (2d ed. 1987 and Supp. 1988). This “reasonable person” standard also ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.

C

Applying the Court’s test to the facts of this case, we conclude that respondent was not seized by the police before he discarded the packets containing the controlled substance. Although Officer Peltier referred to the police conduct as a “chase,” and the Magistrate who originally dismissed the complaint was impressed by this description, the characterization is not enough, standing alone, to implicate Fourth Amendment protections. Contrary to respondent’s assertion that a chase necessarily communicates that detention is intended and imminent, Brief for Respondent 9, the police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block respondent’s course or otherwise control the direction or speed of his movement. Tr. of Oral Arg. 2, 11, 20. While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. Cf. United States v. Knotts, 460 U. S. 276 (1983) (holding that continuous surveillance on public thoroughfares by visual observation and electronic “beeper” does not constitute seizure); Florida v. Royer, 460 U. S., at 497 (plurality opinion) (noting that mere approach by law enforcement officers, identified as such, does not constitute seizure). Without more, the police conduct here — a brief acceleration to catch up with respondent, followed by a short drive alongside him — was not “so intimidating” that respondent could reasonably have believed that he was not free to disregard the police presence and go about his business. INS v. Delgado, 466 U. S., at 216. The police therefore were not required to have “a particularized and objective basis for suspecting [respondent] of criminal activity,” in order to pursue him. United States v. Cortez, 449 U. S. 411, 417-418 (1981).

J-H HH

Because respondent was not unlawfully seized during the initial police pursuit, we conclude that charges against him were improperly dismissed. Accordingly, we reverse the judgment of the Michigan Court of Appeals, and remand the case to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Kennedy,

with whom Justice Scalia joins, concurring.

It is no bold step to conclude, as the Court does, that the evidence should have been admitted, for respondent’s unprovoked flight gave the police ample cause to stop him. The Court instead concentrates on the significance of the chase; and as to that it is fair to interpret its opinion as finding no more than an absence of-improper conduct. We would do well to add that, barring the need to inquire about hot pursuit, which is not at issue here, neither “chase” nor “investigative pursuit” need be included in the lexicon of the Fourth Amendment.

A Fourth Amendment seizure occurs when an individual remains in the control of law enforcement officials because he reasonably believes, on the basis of their conduct toward him, that he is not free to go. See, e. g., INS v. Delgado, 466 U. S. 210, 215 (1984); United States v. Mendenhall, 446 U. S. 544, 554 (1980) (opinion of Stewart, J.). The case before us presented an opportunity to consider whether even an unmistakable show of authority can result in the seizure of a person who attempts to elude apprehension and who discloses contraband or other incriminating evidence before he is ultimately detained. It is at least plausible to say that whether or not the officers’ conduct communicates to a person a reasonable belief that they intend to apprehend him, such conduct does not implicate Fourth Amendment protections until it achieves a restraining effect. The Court’s opinion does not foreclose this holding, and I concur.

       The Magistrate did not independently consider whether the codeine pills, if lawfully seized, established probable cause justifying respondent’s arrest. The Fourth Amendment issue before us is therefore limited to the police conduct preceding and including respondent’s disposal of the packets.

       In Terrell, a police officer got out of his unmarked car and “gave chase” on foot after allegedly observing the defendant stick his hand in his pocket and run at the sight of the officer. 77 Mich. App., at 678, 259 N. W. 2d, at 188. According to the officer, the defendant ran into an apartment building where the officer observed him drop a clear envelope containing a brown powdery substance. Having determined that the package might contain heroin, the officer arrested the defendant. At a pretrial hearing, the trial court granted the defendant’s motion to suppress the envelope and its contents. The Michigan Court of Appeals affirmed, finding that the police “investigatory pursuit” constituted a seizure that was unjustified by any particularized suspicion that the defendant was engaged in criminal activity. Id., at 679-680, 259 N. W. 2d, at 188-189.

       The Michigan Court of Appeals rested its holding on People v. Terrell, supra, and People v. Shabaz, 424 Mich. 42, 378 N. W. 2d 451 (1985), cert. dism’d (in view of that respondent’s death), 478 U. S. 1017 (1986), both of which were to the effect that the defendant in question had been seized in violation of the Fourth Amendment of the United States Constitution. In Shabaz, the Michigan Supreme Court quoted “Michigan’s analogous [constitutional] provision,” without elaboration, in a footnote following a recitation of the Fourth Amendment. 424 Mich., at 52, n. 4, 378 N. W. 2d, at 455, n. 4. The Supreme Court said nothing to suggest that the Michigan Constitution’s seizure provision provided an independent source of relief, and the court’s entire analysis rested expressly on the Fourth Amendment and federal cases. Similarly, in Terrell, the Michigan Court of Appeals stated that the suppression of evidence and dismissal of charges against the defendant “was soundly based on existing law, state and Federal,” but made clear that the scope of the right in question was defined “by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” 77 Mich. App., at 679, 259 N. W. 2d, at 188, citing Terry v. Ohio, 392 U. S. 1, 20 (1968). In light of the bases for the courts’ decisions in Shabaz and Terrell, we readily conclude that the decision below likewise rests on the Michigan courts’ interpretation of the Federal Constitution and not on any adequate and independent state ground. See Michigan v. Long, 463 U. S. 1032 (1983). The defense in effect concedes this. See Tr. of Oral Arg. 38-39.

       Two justices of the Michigan Supreme Court would have granted leave to appeal. See App. to Pet. for Cert. 10a.

       Three other Justices, otherwise in the majority, chose not to reach the question whether the federal officers had seized respondent. 446 U. S., at 560 (opinion concurring in part and concurring in the judgment).

       At the preliminary hearing, the Magistrate interrupted the State’s attorney, who was asserting that the police were simply performing routine patrolling duties, with the following:
      “That would be fine until the Officer said we were chasing him in the car, otherwise I would agree with you. My ears picked up when the Officer said that, you know. He said we went around. I asked him why were you chasing him in the car, why were you chasing him and he said because he was running and we wanted to see where he was going.” App. 29-30.

       As Officer Peltier explained, the goal of the “chase” was not to capture respondent, but “to see where he was going.” Id., at 25. Of course, the subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted. United States v. Mendenhall, 446 U. S., at 554, n. 6 (opinion of Stewart, J.). See also 3 W. LaFave, Search and Seizure § 9.2(h), p. 407 (2d ed. 1987 and Supp. 1988) (uncommunicated intent of police irrelevant to determination of whether seizure occurred).

       The facts of this case are not identical to the facts involved in both Terrell and Shabaz, upon which the Michigan courts relied in finding a seizure in this case. In both Terrell and Shabaz, a police officer got out of the car to chase the pedestrian suspect on foot, after which the defendant abandoned the inculpatory evidence. People v. Terrell, 77 Mich. App., at 678, 259 N. W. 2d, at 188; People v. Shabaz, 424 Mich., at 47-48, 378 N. W. 2d, at 453. In Shabaz, the State appears to have stipulated that the chase, whose clear object was to apprehend the defendant, constituted a seizure. Id., at 52, 378 N. W. 2d, at 455. While no similar stipulation was entered in Terrell, the goal of that chase appears to have been equally clear. We, of course, intimate no view as to the federal constitutional correctness of either of those Michigan state-court cases.

       The United States, which has submitted a brief as amicus curiae, suggests that, in some circumstances, police pursuit “will amount to a stop from the outset or from an early point in the chase, if the police command the person to halt and indicate that he is not free to go.” Brief for United States as Amicus Curiae 13. Of course, such circumstances are not before us in this case. We therefore leave to another day the determination of the circumstances in which police pursuit could amount to a seizure under the Fourth Amendment.


source: Caselaw Access Project

author:
Justice Stevens
      Justice Brennan, Justice White,

license: Public Domain

text:
    JOHNSON v. MISSISSIPPI
    No. 87-5468.
    Argued April 25, 1988
    Decided June 13, 1988

      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. 591. White, J., filed a concurring opinion, in which Rehnquist, C. J., joined, post, p. 591. O’Connor, J., concurred in the judgment.

      Floyd Abrams argued the cause for petitioner. With him on the briefs were Laurence T. Sorkin, Marshall Cox, Anthony Paduano, and Clive A. Stafford Smith.

      Marvin L. White, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Mike Moore, Attorney General.

        Robert M, Kaufman, Jonathan Lang, Eric M. Freedman, and Steven B. Rosenfeld filed a brief for the Committee on Civil Rights of the Association of the Bar of the City of New York as amicus curiae urging reversal.
      Briefs of amici curiae were filed for the Attorney General of the State of New York by Robert Abrams, Attorney General, pro se, 0. Peter Sherwood, Solicitor General, and Suzanne M. Lynn, Susan Jacobs, and Barry Bassis, Assistant Attorneys General; and for the Mississippi Public Defenders’ Association by Thomas M. Fortner.

   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 hearing, the jury found three aggravating circumstances, 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.

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 postconviction 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. People v. Johnson, 69 N. Y. 2d 339, 506 N. E. 2d 1177 (1987).

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. Second, it expressed concern that Mississippi’s capital sentencing procedures would become capricious and standardless if the postsentencing 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 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.

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.

r-H HH

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, 363-364 (1977) (White, J., concurring in judgment) (quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976)). Although we have acknowledged that “there can be ‘no per-feet 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, 884-885, 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.

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 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 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. United States v. Tucker, 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, 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, 149 (1964).” Hathorn v. Lovorn, 457 U. S. 255, 262-263 (1982); see Henry v. Mississippi, 379 U. S., at 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 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 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 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.

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 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. 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.

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.

Justice O’Connor concurs in the judgment.

Justice Brennan,

with whom Justice Marshall joins, concurring.

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, 227 (1976), I would direct that the resentenc-ing 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).

       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.” 13 Record 2289, 2294; 511 So. 2d 1333, 1337 (Miss. 1987).

       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 Maicena 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).

       The New York court first determined that the appeal was “timely” in light of the “unusual circumstances of [petitioner’s] ease.” 69 N. Y. 2d, at 341, 506 N. E. 2d, at 1178. 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 appeal-able issues with possible merit.” Id., at 342, 506 N. E. 2d, at 1178. 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.

       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 certio-rari 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.

       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.

       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 posteonviction 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.

       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. § 99-39-21(1) (Supp. 1987), which provides that “[fjailure 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.

       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, 196, 219 (1985).

        “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 581.

       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 887.