author:
Chief Justice Rehnquist
      Justice O’Connor,
      Justice Brennan, Justice Blackmun,

text:
    CALIFORNIA v. BROWN
    No. 85-1563.
    Argued December 2, 1986
    Decided January 27, 1987
    Rehnquist, C. J., delivered the opinion of the Court, in which White, Powell, O’CONNOR, and Scalia, JJ., joined. O’CONNOR, J., filed a concurring opinion, post, p. 544. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, and in Parts II, III, IV, and V of which Stevens, J., joined, post, p. 547. Blackmun, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 561.

      Jay M. Bloom, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, and Harley D. Mayfield, Assistant Attorney General.

      Monica Knox argued the cause and filed a brief for respondent.

        Christopher N. Heard filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.

        Paul W. Cane, Jr., and Paul Hoffman filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The question presented for review in this case is whether an instruction informing jurors that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” during the penalty phase of a capital murder trial violates the Eighth and Fourteenth Amendments to the United States Constitution. We hold that it does not.

Respondent Albert Brown was found guilty by a jury of forcible rape and first-degree murder in the death of 15-year-old Susan J. At the penalty phase, the State presented evidence that respondent had raped another young girl some years prior to his attack on Susan J. Respondent presented the testimony of several family members, who recounted respondent’s peaceful nature and expressed disbelief that respondent was capable of such a brutal crime. Respondent also presented the testimony of a psychiatrist, who stated that Brown killed his victim because of his shame and fear over sexual dysfunction. Brown himself testified, stating that he was ashamed of his prior criminal conduct and asking for mercy from the jury.

California Penal Code Ann. § 190.3 (West Supp. 1987) provides that capital defendants may introduce at the penalty phase any evidence “as to any matter relevant to . . . mitigation . . . including, but not limited to, the nature and circumstances of the present offense,. . . and the defendant’s character, background, history, mental condition and physical condition.” The trial court instructed the jury to consider the aggravating and mitigating circumstances and to weigh them in determining the appropriate penalty. App. 23-24. But the court cautioned the jury that it “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Id., at 20. Respondent was sentenced to death.

On automatic appeal, the Supreme Court of California reversed the sentence of death. 40 Cal. 3d 512, 709 P. 2d 440 (1985). Over two dissents on this point, the majority opinion found that the instruction at issue here violates the Federal Constitution: “ ‘federal constitutional law forbids an instruction which denies a capital defendant the right to have the jury consider any “sympathy factor” raised by the evidence when determining the appropriate penalty ....’” Id., at 537, 709 P. 2d, at 453, quoting People v. Lanphear, 36 Cal. 3d 163, 165, 680 P. 2d 1081, 1082 (1984). Relying on Eddings v. Oklahoma, 455 U. S. 104 (1982), Lockett v. Ohio, 438 U. S. 586 (1978), and Woodson v. North Carolina, 428 U. S. 280 (1976), the court ruled that the instruction “is calculated to divert the jury from its constitutional duty to consider ‘any [sympathetic] aspect of the defendant’s character or record,’ whether or not related to the offense for which he is on trial, in deciding the appropriate penalty.” 40 Cal. 3d, at 537, 709 P. 2d, at 453. We granted certiorari to resolve whether such an instruction violates the United States Constitution. 476 U. S. 1157 (1986).

The Eighth Amendment jurisprudence of this Court establishes two separate prerequisites to a valid death sentence. First, sentencers may not be given unbridled discretion in determining the fates of those charged with capital offenses. The Constitution instead requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion. Gregg v. Georgia, 428 U. S. 153 (1976); Furman v. Georgia, 408 U. S. 238 (1972). Second, even though the sentencer’s discretion must be restricted, the capital defendant generally must be allowed to introduce any relevant mitigating evidence regarding his “‘character or record and any of the circumstances of the offense.’” Eddings, supra, at 110, quoting Lockett, supra, at 604. Consideration of such evidence is a “constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, supra, at 304 (opinion of Stewart, Powell, and Stevens, JJ.). The instruction given by the trial court in this case violates neither of these constitutional principles.

We think that the California Supreme Court improperly focused solely on the word “sympathy” to determine that the instruction interferes with the jury’s consideration of mitigating evidence. “The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning.” Francis v. Franklin, 471 U. S. 307, 315-316 (1985); see Sandstrom v. Montana, 442 U. S. 510, 516-517 (1979). To determine how a reasonable juror could interpret an instruction, we “must focus initially on the specific language challenged.” Francis v. Franklin, 471 U. S., at 315. If the specific instruction fails constitutional muster, we then review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law. Ibid. In this ease, we need not reach the second step of analysis because we hold that a reasonable juror would not interpret the challenged instruction in a manner that would render it unconstitutional.

The jury was told not to be swayed by “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Respondent does not contend, and the Supreme Court of California did not hold, that conjecture, passion, prejudice, public opinion, or public feeling should properly play any role in the jury’s sentencing determination, even if such factors might weigh in the defendant’s favor. Rather, respondent reads the instruction as if it solely cautioned the jury not to be swayed by “sympathy.” Even if we were to agree that a rational juror could parse the instruction in such a hypertechnical manner, we would disagree with both respondent’s interpretation of the instruction and his conclusion that the instruction is unconstitutional.

By concentrating on the noun “sympathy,” respondent ignores the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy. Even a juror who insisted on focusing on this one phrase in the instruction would likely interpret the phrase as an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase. While strained in the abstract, respondent’s interpretation is simply untenable when viewed in light of the surrounding circumstances. This instruction was given at the end of the penalty phase, only after respondent had produced 13 witnesses in his favor. Yet respondent’s interpretation would have these two words transform three days of favorable testimony into a virtual charade. We think a reasonable juror would reject that interpretation, and instead understand the instruction not to rely oh “mere sympathy” as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.

We also think it highly unlikely that any reasonable juror would almost perversely single out the word “sympathy” from the other nouns which accompany it in the instruction: conjecture, passion, prejudice, public opinion, and public feeling. Reading the instruction as a whole, as we must, it is no more than a catalog of the kind of factors that could improperly influence a juror’s decision to vote for or against the death penalty. The doctrine of noscitur a sociis is based on common sense, and a rational juror could hardly hear this instruction without concluding that it was meant to confine the jury’s deliberations to considerations arising from the evidence presented, both aggravating and mitigating.

An instruction prohibiting juries from basing their sentencing decisions on factors not presented at the trial, and irrelevant to the issues at the trial, does not violate the United States Constitution. It serves the useful purpose of confining the jury’s imposition of the death sentence by cautioning it against reliance on extraneous emotional factors, which, we think, would be far more likely to turn the jury against a capital defendant than for him. And to the extent that the instruction helps to limit the jury’s consideration to matters introduced in evidence before it, it fosters the Eighth Amendment’s “need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson, 428 U. S., at 305. Indeed, by limiting the jury’s sentencing considerations to record evidence, the State also ensures the availability of meaningful judicial review, another safeguard that improves the reliability of the sentencing process. See Roberts v. Louisiana, 428 U. S. 325, 335, and n. 11 (1976) (opinion of Stewart, Powell and Stevens, JJ.).

We hold that the instruction challenged in this case does not violate the provisions of the Eighth and Fourteenth Amendments to the United States Constitution. The judgment of the Supreme Court of California is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice O’Connor,

concurring.

This case squarely presents the tension that has long existed between the two central principles of our Eighth Amendment jurisprudence. In Gregg v. Georgia, 428 U. S. 153, 189 (1976), Justices Stewart, Powell, and Stevens concluded that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” In capital sentencing, therefore, discretion must be “‘controlled by clear and objective standards so as to produce non-discriminatory application.’” Id., at 198 (quoting Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974)). See also Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (State must provide “specific and detailed guidance” to the sentencing body). On the other hand, this Court has also held that a sentencing body must be able to consider any relevant mitigating evidence regarding the defendant’s character or background, and the circumstances of the particular offense. Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion).

The issue in this case is whether an instruction designed to satisfy the principle that capital sentencing decisions must not be made on mere whim, but instead on clear and objective standards, violates the principle that the sentencing body is to consider any relevant mitigating evidence. Justice Brennan in his dissenting opinion contends that the instruction at issue “precludes precisely the response that a defendant’s evidence of character and background is designed to elicit.” Post, at 548. The Court, on the other hand, holds that the instruction merely admonishes the jury “to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase.” Ante, at 542.

In my view, evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. This emphasis on culpability in sentencing decisions has long been reflected in Anglo-American jurisprudence. As this Court observed in Eddings, the common law has struggled with the problem of developing a capital punishment system that is “sensible to the uniqueness of the individual.” 455 U. S., at 110. Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant. Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant’s background, character, and crime rather than mere sympathy or emotion.

Because the individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, I agree with the Court that an instruction informing the jury that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” does not by itself violate the Eighth and Fourteenth Amendments to the United States Constitution. At the same time, the jury instructions — taken as a whole — must clearly inform the jury that they are to consider any relevant mitigating evidence about a defendant’s background and character, or about the circumstances of the crime. As Justice Brennan’s dissent illustrates, however, one difficulty with attempts to remove emotion from capital sentencing through instructions such as those at issue in this case is that juries may be misled into believing that mitigating evidence about a defendant’s background or character also must be ignored. See post, at 555.

On remand, the California Supreme Court should determine whether the jury instructions, taken as a whole, and considered in combination with the prosecutor’s closing argument, adequately informed the jury of its responsibility to consider all of the mitigating evidence introduced by the respondent. The jury was given instruction 8.84.1, 1 California Jury Instructions, Criminal (4th ed. 1979) (CALJIC), which lists the specific aggravating and mitigating factors the sentencer is to consider in determining punishment. Only one subsection of that instruction even arguably applies to the nonstatutory mitigating factors:

“Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” CALJIC 8.84. l(k).

The respondent contends that the jury might have understood this instruction as mandating consideration only of mitigating evidence about the circumstances of the crime, and not evidence about the defendant’s background and character. Moreover, in his closing remarks, the prosecutor in this case may have suggested to the jury that it must ignore the mitigating evidence about the respondent’s background and character. In combination with the instructions, the comments of the prosecutor may create a “legitimate basis for finding ambiguity concerning the factors actually considered by the” jury. Eddings v. Oklahoma, supra, at 119 (O’Connor, J., concurring).

Because it is open to the California Supreme Court to determine on remand whether the jury was adequately informed of its obligation to consider all of the mitigating evidence introduced by the respondent, I concur in the judgment and opinion of the Court.

Justice Brennan,

with whom Justice Marshall joins, and with whom Justice Stevens joins as to Parts II-V, dissenting.

I

Adhering to my view that the death' penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I dissent from the Court’s opinion to the extent that it would result in the imposition of the death penalty upon respondent. Gregg v. Georgia, 428 U. S. 153, 227 (1976). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I would affirm the California Supreme Court, for that court has reasonably interpreted the jury instruction at issue to divert the jury from its constitutional duty to consider all mitigating evidence introduced by a defendant at the sentencing phase of trial.

J — ( I — I

A sentencing instruction is invalid if it precludes the sentencer from “considering, as a mitigating factor, any aspect of a defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion) (emphasis omitted). Furthermore, an instruction cannot stand if it leaves the jury unclear as to whether it may consider such evidence. “[W]e may not speculate as to whether the [sentencer] actually considered all of the mitigating factors and found them insufficient to offset the aggravating circumstances,” since our case law “require[s] us to remove any legitimate basis for finding ambiguity concerning the factors actually considered . . . .” Eddings v. Oklahoma, 455 U. S. 104, 119 (1982) (O’Connor, J., concurring).

The issue in this case is whether a jury might reasonably interpret the California jury instruction in either of these two ways. The facial language of the instruction, the manner in which it has been construed in trials in California, and experience with other provisions of the state sentencing scheme all buttress California’s interpretation of its own jury instruction. In light of this evidence, there is simply no warrant for this Court to override the state court’s assessment of how a jury in California might reasonably interpret the instruction before us.

III

A

The instruction at issue informed the jury: “You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” App. 20. In forbidding the sentencer to take sympathy into account, this language on its.face precludes precisely the response that a defendant’s evidence of character and background is designed to elicit, thus effectively negating the intended effect of the Court’s requirement that all mitigating evidence be considered. As the plurality said in Woodson v. North Carolina, 428 U. S. 280, 304 (1976), such evidence is intended to induce consideration of “compassionate or mitigating factors stemming from the diverse frailties of humankind.” In Eddings, supra, for example, we struck down petitioner’s death sentence because of the failure of the trial judge to consider Eddings’ troubled childhood as a mitigating factor. The fact that his parents divorced when he was five, that his mother was an alcoholic and possibly a prostitute, and that his father used excessive physical punishment were all deemed relevant to the sentencing decision, 455 U. S., at 107, because of their potential for evoking sympathy for petitioner.

The State acknowledges that sympathy for the defendant is appropriate, but contends that the antisympathy instruction simply prevents the jury from relying on “untethered sympathy” unrelated to the circumstances of the offense or the defendant. Brief for Petitioner 49, 58. Yet, as the California court has noted on other occasions, see People v. Easley, 34 Cal. 3d. 858, 875-876, 671 P. 2d 813, 824 (1983), the instruction gives no indication whatsoever that the jury is to distinguish between “tethered” and “untethered” sympathy. The Court nonetheless accepts the notion that a jury would interpret the instruction to require such a distinction. None of the reasons it offers for accepting this implausible construction are persuasive.

First, the Court finds it significant that the jury was instructed not simply to avoid sympathy, but to avoid “mere” sympathy. This word, contends the Court, would likely lead a juror to interpret the instruction “as an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase.” Ante, at 542. The instruction, however, counsels the jury not to be swayed by “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” A juror could logically conclude that “mere” modified only “sentiment,” so it is by no means clear that the instruction would likely be construed to preclude reliance on “mere sympathy.” In order for “mere” to be regarded as modifying “sympathy,” as the Court contends, “mere” must be read to modify all the other terms in the instruction as well: conjecture, passion, prejudice, public opinion, or public feeling. By the Court's own logic, since “mere” serves to distinguish “tethered” from “untethered” sympathy, it also serves to distinguish “tethered” from “untethered” versions of all the other emotions listed. Yet surely no one could maintain, for instance, that some “tethered” form of prejudice relating to the case at hand could ever be appropriate in capital sentencing deliberations. Indeed, the Court describes the nouns accompanying “sympathy” in the instructions as “no more than a catalog of the kind of factors that could improperly influence a juror’s decision to vote for or against the death penalty.” Ante, at 543. The single word “mere” therefore cannot shoulder the burden of validating this antisympathy instruction.

Second, the Court argues that jurors must assume that the defendant would not introduce evidence of character and background if the jury could not consider such information. Ante, at 542. It is equally likely, however, that jurors instructed not to rely on sympathy would conclude that the defendant had simply gone too far in his presentation, and that, as in other trial contexts, the jury must look to the judge for guidance as to that portion of the evidence that appropriately could be considered. Instructions are commonly given at the end of trial which clarify the significance of evidence and of events at trial, since the jury is not at liberty to assume that everything that occurs at trial is automatically or equally relevant to its deliberations.

Finally, the Court says that, since “sympathy” is accompanied in the instruction by a list of obviously impermissible factors, a juror would naturally assume that the instruction “was meant to confine the jury’s deliberations to considerations arising from the evidence presented, both aggravating and mitigating.” Ante, at 543. How a juror would be expected to make this leap is unclear. The inclusion of “sympathy” in an expansive list of impermissible emotions would logically lead a juror to conclude that any response rooted in emotion was inappropriate. An average juror is likely to possess the common understanding that law and emotion are antithetical, and an instruction that a wide range of emotional factors are irrelevant to his or her deliberation reinforces that notion. It is simply unrealistic to assume that an instruction ruling out several emotions in unqualified language would be construed as a directive that certain forms of emotion are permissible while others are not. While we generally assume that jurors are rational, they are not telepathic.

The vast majority of jurors thus can be expected to interpret “sympathy” to mean “sympathy,” not to engage in the tortuous reasoning process necessary to construe it as “untethered sympathy.” We would be far more likely in fact to call into question the fidelity to duty of a juror who did the latter. The assertion that the instruction in question serves the purpose of channeling the jury’s sympathy in a legitimate direction is therefore completely unfounded.

Even if the majority’s interpretation of the instruction were considered as plausible as that of the state court, this would be insufficient to save the instruction. The very plausibility of the lower court’s construction means that there is a significant prospect that a juror would interpret the instruction so as to restrict or obfuscate the duty to consider mitigating evidence. As we held in Sandstrom v. Montana, 442 U. S. 510 (1979), the fact that a reasonable juror could have construed an instruction to make it unconstitutional is adequate to invalidate that instruction. Id., at 526. The fact that jurors could have interpreted the instruction so as to make it lawful is irrelevant, for “we cannot be certain that this is what they did do.” Ibid, (emphasis in original). Even if the state court’s interpretation is not ineluctable, it is undeniably reasonable — and that is enough to invalidate the instruction.

B

Our assessment of the state court’s interpretation of the instruction need not rest simply on what seems in the abstract the most plausible response to the instruction’s plain language. That court’s construction is bolstered by experience with how the instruction actually has been interpreted in the state trial system. This experience dates back at least to 1970, when the State Supreme Court invalidated an instruction virtually identical to the one at issue in this case. People v. Bandhauer, 1 Cal. 3d 609, 618, 463 P. 2d 408, 416 (1970). That instruction informed the jury: “The law forbids you to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Ibid. The court ruled that such guidance was inconsistent with state case law holding that the jury at a penalty trial could not be instructed not to consider sympathy for the defendant, see, e. g., People v. Polk, 63 Cal. 2d 443, 406 P. 2d 641 (1965). In Bandhauer, the court further found that the antisympathy directive was not saved by a companion instruction that told the jury: “[Y]ou are entirely free to act according to your own judgment, conscience and absolute discretion,” for that instruction merely created an inconsistency that the jury might well resolve “by concluding that the restriction on sympathy served as an exception to [its] otherwise unlimited discretion.” 1 Cal. 3d, at 618-619, 463 P. 2d, at 416.

It was against this backdrop that the state court reviewed the virtually identical instruction in this case. The court had the benefit of experience not only with the earlier instruction invalidated in Bandhauer, but with the more recent instruction as well. In its 1983 decision in Easley, reviewing the later instruction, the court had noted that the drafters of the antisympathy instruction had cautioned that “ ‘[t]his instruction 1.00 should not be used in the penalty phase of a capital case/” and that instructions pertaining to the consideration of aggravating and mitigating factors were more appropriate at that stage of trial. 34 Cal. 3d, at 876, and n. 5, 671 P. 2d, at 824, and n. 5 (emphasis omitted) (quoting use note to CALJIC 1.00).

Furthermore, state trial records indicate the frequency with which the antisympathy instruction has been.interpreted to preclude consideration of a defendant’s background and character. In this case, for instance, the prosecutor in his closing argument noted that numerous relatives had testified at the penalty phase on behalf of Brown, and that they “told us what a good boy he was at the time in his youth when they knew him. And he brought them gifts and that he cared after his siblings.” App. 90. Nonetheless, said the prosecutor:

“They did not testify, ladies and gentlemen, regarding any of the factors which relate to your decision in this case. Their testimony here, ladies and gentlemen, I would suggest, was a blatant attempt by the defense to inject personal feelings in the case, to make the defendant appear human, to make you feel for the defendant, and although that is admirable in the context of an advocate trying to do his job, you ladies and gentlemen must steel yourselves against those kinds of feelings in reaching a decision in this case.
“As the Judge will instruct you, you must not be swayed by sympathy.” Id., at 90-91 (emphasis added).

The prosecutor in this case thus interpreted the anti-sympathy instruction to require that the jury ignore the defendant’s evidence on the mitigating factors of his character and upbringing. A similar construction has been placed on the instruction in several other cases. In People v. Robertson, 33 Cal. 3d 21, 655 P. 2d 279 (1982), for instance, the prosecutor informed the jury that the fact that the defendant “didn’t get the breaks in life” was irrelevant, because “[t]hat’s a sympathy factor, a sympathy factor that does not focus on the real issue, the crime and person Andrew Robertson was at the time [the crime] was committed.” Id., at 56 and 57, n. 22, 655 P. 2d, at 300, and n. 22. He then noted that at the penalty phase defendant had put on evidence that “went to the person of Andrew Robertson, giving Andrew Robertson’s history, where he was born, how old he was, what he did as a young man, the fact that he went into the service. That is not a factor. That is irrelevant to your decision in this case.” Id., at 57, n. 22, 655 P. 2d, at 300, n. 22. The prosecutor also dismissed the defendant’s evidence of his service in Vietnam, declaring: “This is simply a sympathy ploy. It is going outside the evidence and asking you to have sympathy, compassion.” Ibid.

Still other cases, pending before the State Supreme Court at the time of argument in this Court, illustrate the gloss that consistently has been placed on the antisympathy instruction. In People v. Gates, Cr. 22263, the prosecutor informed the jury: “Tt’s not a time to talk for mercy or forgiveness for Oscar Gates. It’s too late for that. . . . The evidence that you received in the case, that what you promised the judge you’d base your decision on, because the time now is not for philosophy or religion, mercy, forgiveness, sorry for the family, feelings of guilt on your own part.’” App. to Brief for Respondent 2a (quoting Tr. 1286-1287). In People v. Walker, Cr. 21707, the prosecutor stated: “ T also mentioned, and I guess I should mention it now — I wasn’t going to — the fact that there had been things here which could elicit sympathy. Things which had nothing to do with the case. Mr. Walker belongs to a large family, and those members have been present here for the jury’s observations during the case. But again, obviously that has nothing to do with this case.’” App. to Brief for Respondent (quoting Tr. 3298). In People v. Boyde, Cr. 22584, the jury was informed that its assessment of the aggravating and mitigating factors “‘is not a question, I believe, that should be guided by emotion, sympathy, pity, anger, hate, or anything like that because it is not rational if you make a decision on that kind of basis.’ ” App. to Brief for Respondent 3a (quoting Tr. 4767). Furthermore, said the prosecutor: “‘[SJympathy is an interesting thing, because even though you try not to consider it, this decision you are going to make has emotional overtones to it. It would be very hard to completely filter out all our emotions, make the decision on a rational basis. Although the instruction says you are to try to do that.’” App. to Brief for Respondent 3a (quoting Tr. 4817).

Experience with the antisympathy instruction therefore reveals that it is often construed as precluding consideration of precisely those factors of character and background this Court has decreed must be considered by the sentencer. See Eddings, 455 U. S., at 113-114 (“Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider . . . any relevant mitigating evidence”). Even if the interpretation placed upon the instruction by prosecutors is regarded as the product of excessive zeal, rather than dispassionate construction, the state court had ample reason to conclude that ah instruction that consistently lends itself to such plausible construction is likely to leave the jury with the impression that they may not consider certain mitigating evidence, or at least with a sense of confusion on this point. Experience with such instructions over the past 17 years thus provides persuasive support for the state court’s construction and invalidation of its own jury instruction.

IV

The State argues that whatever defect the antisympathy instruction might possess is cured by CALJIC instruction 8.84.1. That instruction lists the specific aggravating and mitigating factors the sentencer is to consider in determining punishment. The State urges that subsection (k) of this instruction directs the sentencer to consider all of the defendant’s mitigating evidence. That subsection provides that the jury may take into account “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” After defendant’s trial in this case, however, the state court in Easley, rejected the assertion that the instruction adequately informed the jury as to the scope of mitigating evidence, and directed that, in order to “avoid potential misunderstanding in the future,” trial courts should add to the language of subsection (k) the instruction that the jury may consider “any other aspect of [the] defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death.” 34 Cal. 3d, at 878, n. 10, 671P. 2d, at 826, n. 10. This assessment of subsection (k) as it existed at the time of defendant’s trial reflects the fact that the language itself directs attention only to the circumstances of the crime itself, not to broader considerations relating to background or character. This language is consistent with the focus of all other factors described in CALJIC 8.84.1: the nature of the crime or the condition of the defendant at the time it was committed.

Furthermore, experience with the operation of subsection (k) in practice indicates that the instruction was commonly regarded as narrow in scope. In this case, for instance, the prosecutor went down the list of mitigating factors, explicitly mentioning the “other circumstances” of subsection (k), and on each informed the jury that there was no mitigation. App. 94. In Easley, “the prosecutor told the jury that sympathy was not one of the mitigating factors which the law authorized it to consider.” 34 Cal. 3d, at 879, n. 11, 671 P. 2d, at 826, n. 11. Other cases involving the instruction to consider “any other circumstance which extenuates the gravity of the crime,” pending before the State Supreme Court at the time of argument in this Court, also illustrate the fact that the subsection in this form lends itself to such an interpretation. In People v. Payton, Cr. 22511, the prosecutor told the jury that factor (k) relates to “ ‘some factor at the time of the offense that somehow operates to reduce the gravity for what the defendant did. It doesn’t refer to anything after the fact or later.’ ” App. to Brief for Respondent 4a (quoting Tr. 2125). Evidence of the defendant’s “‘new Christianity and that he helped the module deputies in the jail while he was in custody’” was irrelevant, said the prosecutor, since factor (k) referred only to “ ‘a fact in operation at the time of the offense.’ ” App. to Brief for Respondent 4a (quoting Tr. 2125). Thus, concluded the prosecutor, such evidence was “‘just some jailhouse evidence to win your sympathy, and that’s all.’” Ibid.

Similarly, in People v. Hamilton, Cr. 22311, the prosecutor alluded to factor (k), and maintained that the defendant had presented no evidence that properly could be considered. The defendant, observed the prosecutor, had introduced evidence “‘from people who knew the defendant well twelve years ago. None of these people knew the defendant or were with the defendant at or about the time these crimes were occurring.’” App. to Brief for Respondent 6a (quoting 19B Tr. 13-14). In People v. Bigelow, Cr. 22018, the following colloquy occurred regarding the defendant’s motion to modify the death verdict:

“‘COURT: Now we have a catchall K, which is any other circumstances [sic] which extenuates the gravity of the crime, even though it is not a legal excuse for the crime. Do you have anything you want to tell me under that factor, Mr. Bigelow?
“‘DEFENDANT: Extenuates the gravity of the crime, well, that’s — would my sisters and brothers, would their testimony fall into that, my childhood, and not being raised with proper parents, and — would that fall into extenuation of the gravity?
“‘COURT: No, I don’t think that would. I don’t see how your childhood, because you’ve evidently had a not too happy childhood, but that doesn’t give you the right to come to America and take an innocent man and kill him. Does it?’” App. to Brief for Respondent 6a-7a (quoting May 8, 1981, Tr. 28).

Finally, in People v. Walker, Cr. 21707, the prosecutor told the jury with regard to subsection (k) that it is intended to address only those factors that make “ ‘this crime less serious than it looks when you look at the other factors in the case,’ ” such as “‘the person who[m] he killed was someone who meant harm to his family, someone who had threatened him, someone who had made life miserable.’” App. to Brief for Respondent 7a (quoting Tr. 3279-3280).

The state court thus had more than adequate justification, based on both the plain language of subsection (k) and practical experience with its interpretation by participants in the criminal justice system, to assume that a jury might reasonably interpret that subsection narrowly, and that it was unrealistic to assume that juries would construe it to permit consideration of all of a defendant’s mitigating evidence.

Even if the Court ignores this wealth of support for the State’s interpretation of subsection (k), and finds that the instruction as it existed at the time of Brown’s trial directed the jury to consider all of Brown’s mitigating evidence, that is insufficient to save the antisympathy instruction. Such a reading of subsection (k) would simply mean that the jury was confronted with inconsistent instructions likely to create the type of confusion the state court viewed as probable in Bandhauer. As we said in Francis v. Franklin, 471 U. S. 307, 322 (1985): “Nothing in [the] specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Cf. Sandstrom v. Montana, 442 U. S., at 526 (if possibility of misunderstanding exists, “we have no way of knowing that [the defendant] was not convicted on the basis of the unconstitutional instruction”).

Finally, the State argues that, even if subdivision (k) is construed as excluding mitigating evidence not related to the circumstances of the crime, the jurors nonetheless understood that the enumeration of factors in instruction 8.84.1 was not exhaustive. This contention is belied by the fact that the jury was instructed that it “shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.” App. 23 (emphasis added). The plain language of this instruction thus rebuts the State’s contention, since the factors upon which the jury was instructed described only specific types of mitigating evidence. Furthermore, the State Supreme Court has interpreted the instruction quoted immediately above in light of the other portions of the 1978 state death penalty scheme, and has concluded that that scheme “necessarily implie[s] that matters not within the statutory list are not entitled to any weight in the penalty determination.” People v. Boyd, 38 Cal. 3d 762, 773, 700 P. 2d 782, 790 (1985) (footnote omitted). There is therefore no basis for speculation that the jury felt unconstrained by the factors listed in instruction 8.84.1.

V

The California Supreme Court in this case has provided an eminently reasonable interpretation of the State’s antisym-pathy instruction. The language of the instruction on its face prohibits a jury from relying on sympathy in determining whether to sentence a defendant to death. The defendant literally staked his life in this case on the prospect that a jury confronted with evidence of his psychological problems and harsh family background would react sympathetically, and any instruction that would preclude such a response cannot stand. Furthermore, even acceptance of the State’s attenuated interpretation of other instructions does not mean that these provisions cure the problem with the antisympa-thy instruction, but leads only to the conclusion that the jury was confronted with contradictory instructions, a state of affairs that we have declared intolerable.

This Court has proclaimed that in capital cases “the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensible part of the process of inflicting the penalty of death.” Woodson, 428 U. S., at 304 (plurality opinion) (citation omitted). Because of the qualitatively different nature of the death penalty, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Id., at 305. Even construed in its most favorable light, the jury instruction at issue in this case did not come close to providing the requisite assurance that the jury in this case was fully aware of the scope of its sentencing duties. Since Brown’s mitigating evidence was composed totally of information on his character and background intended to elicit sympathy, it is highly likely that the instruction eliminated his only hope of gaining mercy from the sentencer. Given our particular concern for the reliability of the procedures used to impose the death penalty, as well as the considerable support for the California court’s interpretation, it is baffling that this Court strains to find a way to override the state court’s construction of its own jury instruction. I cannot acquiesce in such a course of action, and therefore dissent.

Justice Blackmun,

with whom Justice Marshall joins, dissenting.

I write separately to emphasize a point to which others have alluded, see ante, at 545 (O’Connor, J., concurring); ante, at 548 and this page (Brennan, J., dissenting), but which, in my view, has not been brought into full focus.

The defense’s goal in the penalty phase of a capital trial is, of course, to receive a life sentence. See Balske, New Strategies for the Defense of Capital Cases, 13 Akron L. Rev. 331, 357 (1979). While the sentencer’s decision to accord life to a defendant at times might be a rational or moral one, it also may arise from the defendant’s appeal to the sentencer’s sympathy or mercy, human qualities that are undeniably emotional in nature. See Tr. of Oral Arg. 38, 46, 48.

In a capital sentencing proceeding, the sentencer’s discretion must be guided to avoid arbitrary or irrational decisions. See Gregg v. Georgia, 428 U. S. 153, 195 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). When a jury serves as the sentencing authority, such guidance is provided, in part, through jury instructions. This Court, however, has recognized and even safeguarded the sentencer’s power to exercise its mercy to spare the defendant’s life. See Caldwell v. Mississippi, 472 U. S. 320, 331 (1985), quoting Caldwell v. State, 443 So. 2d 806, 817 (Miss. 1983) (dissenting opinion) (“ ‘The [mercy] plea is made directly to the jury as only they may impose the death sentence’”); Eddings v. Oklahoma, 455 U. S. 104, 110 (1982) (“[T]he rale in Lockett [v. Ohio, 438 U. S. 586 (1978)] is the product of a considerable history reflecting the law’s effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual”); Gregg v. Georgia, 428 U. S., at 182 (opinion of Stewart, Powell, and Stevens, JJ.) (“Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases”).

The sentencer’s ability to respond with mercy towards a defendant has always struck me as a particularly valuable aspect of the capital sentencing procedure. Long ago, when, in dissent, I expressed my fear of legislation that would make the death penalty mandatory, and thus remove all discretion from the sentencer, I observed that such legislation would be “regressive ... , for it [would] eliminat[e] the element of mercy in the imposition of punishment.” Furman v. Georgia, 408 U. S. 238, 413 (1972). In my view, we adhere so strongly to our belief that sentencers should have the opportunity to spare a capital defendant’s life on account of compassion for the individual because, recognizing that the capital sentencing decision must be made in the context of “contemporary values,” Gregg v. Georgia, 428 U. S., at 181 (opinion of Stewart, Powell, and Stevens, JJ.), we see in the sentencer’s expression of mercy a distinctive feature of our society that we deeply value.

In the real world, as in this case, it perhaps is unlikely that one word in an instruction would cause a jury totally to disregard mitigating factors that the defendant has presented through specific testimony. When, however, a jury member is moved to be merciful to the defendant, an instruction telling the juror that he or she cannot be “swayed” by sympathy well may arrest or restrain this humane response, with truly fatal consequences for the defendant. This possibility I cannot accept, in light of the special role of mercy in capital sentencing and the stark finality of the death sentence. See Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion).

I respectfully dissent.

      We have noted our approval of this statutory scheme. California v. Ramos, 468 U. S. 992, 1005, n. 19 (1983). See also Pulley v. Harris, 465 U. S. 37, 53 (1984).

       The language of this instruction was drawn from the longer instruction 1.00 of 1 California Jury Instructions, Criminal (4th ed. 1979) (CALJIC).

       The Court also suggests that an antisympathy instruction actually benefits a defendant in that it prevents the senteneer from being influenced by sympathy for the victim. Ante, at 543. It may be that the instruction produces this result in certain cases. But it also undoubtedly precludes sympathy for the defendant in other instances, since the language of the instruction draws no distinction between these two types of sympathy. The fact that a defendant may on occasion benefit from the provision in question is insufficient to outweigh the fact that the instruction can reasonably be construed to negate the effect of a significant portion of a defendant’s mitigating evidence. Whatever speculative benefit the instruction bestows on the defendant cannot be purchased at such a price.

       This requirement that the jury not be precluded from relying on sympathy was confirmed after Furman v. Georgia, 408 U. S. 238 (1972), as consistent with this Court’s decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). See People v. Robertson, 33 Cal. 3d. 21, 57, 655 P. 2d 279, 301 (1982).

       Instruction 8.84.1 provides that the jury is to consider the following:
      “(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special eircum-stance[s] found to be true.
      “(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence.
      “(c) The presence or absence of any prior felony conviction.
      “(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
      “(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
      “(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
      “(g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
      “(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the affects [sic] of intoxication.
      “(i) The age of the defendant at the time of the crime.
      “(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
      “(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” CALJIC 8.84.1.

       As the court in Boyd noted, the potential constitutional infirmity resulting from the fact that none of the factors on its face “appeared broad enough to encompass every aspect of the defendant’s character and background he might advance for consideration,” 38 Cal. 3d, at 775, 700 P. 2d, at 791, was avoided by the 1983 construction of factor (k) as an open-ended provision permitting the jury to consider any mitigating evidence. See People v. Easley, 34 Cal. 3d 858, 878, and n. 10, 671 P. 2d 813, 826, and n. 10 (1983).


source: Caselaw Access Project

author: Justice Powell Justice Marshall,

license: Public Domain

text:
    COLORADO v. SPRING.
    No. 85-1517.
    Argued December 9, 1986
    Decided January 27, 1987

      Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 577.

      Maureen Phelan, Assistant Attorney General of Colorado, argued the cause for petitioner. With her on the briefs were Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney General, and Richard H. Forman, Solicitor General.

      Lawrence S. Robbins argued the cause for the United States as amicus curiae urging reversal. On the brief were
      Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Bryson, and Andrew J. Pincus.

      Seth J. Benezra argued the cause for respondent. With him on the brief were Margaret L. O’Leary, Thomas M. Van Cleave III, and David F. Vela.

        Saskia A. Jordan filed a brief for the Colorado Criminal Defense Bar, Inc., as amicus curiae urging affirmance.

        Fred E. Inbau, Wayne W. Schmidt, James P. Manak, John K. Van de Kamp, Attorney General of California, David Crump, Daniel B. Hales, William C. Summers, and Jack E. Yelverton filed a brief for the State of California et al. as amici curiae.

   Justice Powell

delivered the opinion of the Court.

In Miranda v. Arizona, 384 U. S. 436 (1966), the Court held that a suspect's waiver of the Fifth Amendment privilege against self-incrimination is valid only if it is made voluntarily, knowingly, and intelligently. Id., at 444. This case presents the question whether the suspect’s awareness of all the crimes about which he may be questioned is relevant to determining the validity of his decision to waive the Fifth Amendment privilege.

I

In February 1979, respondent John Leroy Spring and a companion shot and killed Donald Walker during a hunting trip in Colorado. Shortly thereafter, an informant told agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) that Spring was engaged in the interstate transportation of stolen firearms. The informant also told the agents that Spring had discussed his participation in the Colorado killing. At the time the ATF agents received this information, Walker’s body had not been found and the police had received no report of his disappearance. Based on the information received from the informant relating to the firearms violations, the ATF agents set up an undercover operation to purchase firearms from Spring. On March 30, 1979, ATF agents arrested Spring in Kansas City, Missouri, during the undercover purchase.

An ATF agent on the scene of the arrest advised Spring of his Miranda rights. Spring was advised of his Miranda rights a second time after he was transported to the ATF office in Kansas City. At the ATF office, the agents also advised Spring that he had the right to stop the questioning at any time or to stop the questioning until the presence of an attorney could be secured. Spring then signed a written form stating that he understood and waived his rights, and that he was willing to make a statement and answer questions.

ATF agents first questioned Spring about the firearms transactions that led to his arrest. They then asked Spring if he had a criminal record. He admitted that he had a juvenile record for shooting his aunt when he was 10 years old. The agents asked if Spring had ever shot anyone else. Spring ducked his head and mumbled, “I shot another guy once.” The agents asked Spring if he had ever been to Colorado. Spring said no. The agents asked Spring whether he had shot a man named Walker in Colorado and thrown his body into a snowbank. Spring paused and then ducked his head again and said no. The interview ended at this point.

On May 26, 1979, Colorado law enforcement officials visited Spring while he was in jail in Kansas City pursuant to his arrest on the firearms offenses. The officers gave Spring the Miranda warnings, and Spring again signed a written form indicating that he understood his rights and was willing to waive them. The officers informed Spring that they wanted to question him about the Colorado homicide. Spring indicated that he “wanted to get it off his chest.” In an interview that lasted approximately IV2 hours, Spring confessed to the Colorado murder. During that time, Spring talked freely to the officers, did not indicate a desire to terminate the questioning, and never requested counsel. The officers prepared a written statement summarizing the interview. Spring read, edited, and signed the statement.

Spring was charged in Colorado state court with first-degree murder. Spring moved to suppress both statements on the ground that his waiver of Miranda rights was invalid. The trial court found that the ATF agents’ failure to inform Spring before the March 30 interview that they would question him about the Colorado murder did not affect his waiver of his Miranda rights:

“[T]he questions themselves suggested the topic of inquiry. The questions dealt with ‘shooting anyone’ and specifically killing a man named Walker and throwing his body in a snowbank in Colorado. The questions were not designed to gather information relating to a subject that was not readily evident or apparent to Spring. Spring had been advised of his right to remain silent, his right to stop answering questions, and to have an Attorney present during interrogation. He did not elect to exercise his right to remain silent or to refuse to answer questions relating to the homicide, nor did he request Counsel during interrogation.” App. to Pet. for Cert. 4-A.

Accordingly, the trial court concluded that the March 30 statement should not be suppressed on Fifth Amendment grounds. The trial court, however, subsequently ruled that Spring’s statement that he “shot another guy once” was irrelevant, and that the context of the discussion did not support the inference that the statement related to the Walker homicide. For that reason, the March 30 statement was not admitted at Spring’s trial. The court concluded that the May 26 statement “was made freely, voluntarily, and intelligently, after [Spring’s] being properly and fully advised of his rights, and that the statement should not be suppressed, but should be admitted in evidence.” Id., at 5-A. The May 26 statement was admitted into evidence at trial, and Spring was convicted of first-degree murder.

Spring argued on appeal that his waiver of Miranda rights before the March 30 statement was invalid because he was not informed that he would be questioned about the Colorado murder. Although this statement was not introduced at trial, he claimed that its validity was relevant because the May 26 statement that was admitted against him was the illegal “fruit” of the March 30 statement, see Wong Sun v. United States, 371 U. S. 471 (1963), and therefore should have been suppressed. The Colorado Court of Appeals agreed with Spring, holding that the ATF agents “had a duty to inform Spring that he was a suspect, or to readvise him of his Miranda rights, before questioning him about the murder.” 671 P. 2d 965, 966 (1983). Because they failed to do so before the March 30 interview, “any waiver of rights in regard to questions designed to elicit information about Walker’s death was not given knowingly or intelligently.” Id., at 967. The court held that the March 30 statement was inadmissible and that the State had failed to meet its burden of proving that the May 26 statement was not the product of the prior illegal statement. The court reversed Spring’s conviction and remanded the case for a new trial, directing that if the State sought to introduce the May 26 statement into evidence, the trial court should determine whether the “taint” of the March 30 statement was sufficiently attenuated to allow introduction of the May 26 statement.

The Colorado Supreme Court affirmed the judgment of the Court of Appeals, although its reasoning differed in some respects. 713 P. 2d 865 (1985). The court found:

“[T]he validity of Spring’s waiver of constitutional rights must be determined upon an examination of the totality of the circumstances surrounding the making of the statement to determine if the waiver was voluntary, knowing and intelligent. No one factor is always determinative in that analysis. Whether, and to what extent, a suspect has been informed or is aware of the subject matter of the interrogation prior to its commencement is simply one factor in the court’s evaluation of the total circumstances, although it may be a major or even a determinative factor in some situations.” Id., at 872-873 (citations omitted).

The court concluded:

“Here, the absence of an advisement to Spring that he would be questioned about the Colorado homicide, and the lack of any basis to conclude that at the time of the execution of the waiver, he reasonably could have expected that the interrogation would extend to that subject, are determinative factors in undermining the validity of the waiver.” Id., at 874 (emphasis in original).

Justice Erickson, joined by Justice Rovira, dissented as to the resolution of this issue, stating:

“Law enforcement officers have no duty under Miranda to inform a person in custody of all charges being investigated prior to questioning him. All that Miranda requires is that the suspect be advised that he has the right to remain silent, that anything he says can and will be used against him in court, that he has the right to consult with a lawyer and to have the lawyer present during interrogation, and that if he cannot afford a lawyer one will be appointed to represent him.” Id., at 880 (citations omitted).

The dissenting justices found “ample evidence to support the trial court’s conclusion that Spring waived his Miranda rights” and rejected “the majority’s conclusion that Spring’s waiver of his Miranda rights on March 30, 1979 was invalid simply because he was not informed of all matters that would be reviewed when he was questioned by the police.” Id., at 881. The court remanded the case for further proceedings consistent with its opinion.

We granted certiorari, 476 U. S. 1104 (1986), to resolve an arguable Circuit conflict and to review the Colorado Supreme Court’s determination that a suspect’s awareness of the possible subjects of questioning is a relevant and sometimes determinative consideration in assessing whether a waiver of the Fifth Amendment privilege is valid. We now reverse.

II

There is no dispute that the police obtained the May 26 confession after complete Miranda warnings and after informing Spring that he would be questioned about the Colorado homicide. The Colorado Supreme Court nevertheless held that the confession should have been suppressed because it was the illegal “fruit” of the March 30 statement. A confession cannot be “fruit of the poisonous tree” if the tree itself is not poisonous. Our inquiry, therefore, centers on the validity of the March 30 statement.

A

The Fifth Amendment of the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This privilege “is fully applicable during a period of custodial interrogation.” Miranda v. Arizona, 384 U. S., at 460-461. In Miranda, the Court concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467. Accordingly, the Court formulated the now-familiar “procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444. The Court’s fundamental aim in designing the Miranda warnings was “to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.” Id., at 469.

Consistent with this purpose, a suspect may waive his Fifth Amendment privilege, “provided the waiver is made voluntarily, knowingly and intelligently.” Id., at 444. In this case, the law enforcement officials twice informed Spring of his Fifth Amendment privilege in precisely the manner specified by Miranda. As we have noted, Spring indicated that he understood the enumerated rights and signed a written form expressing his intention to waive his Fifth Amendment privilege. The trial court specifically found that “there was no element of duress or coercion used to induce Spring’s statements [on March 30, 1978].” App. to Pet. for Cert. 3-A. Despite the explicit warnings and the finding by the trial court, Spring argues that his March 30 statement was in effect compelled in violation of his Fifth Amendment privilege because he signed the waiver form without being aware that he would be questioned about the Colorado homicide. Spring’s argument strains the meaning of compulsion past the breaking point.

B

A statement is not “compelled” within the meaning of the Fifth Amendment if an individual “voluntarily, knowingly and intelligently” waives his constitutional privilege. Miranda v. Arizona, supra, at 444. The inquiry whether a waiver is coerced “has two distinct dimensions.” Moran v. Burbine, 475 U. S. 412, 421 (1986):

“First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Ibid, (quoting Fare v. Michael C., 442 U. S. 707, 725 (1979)).

There is no doubt that Spring’s decision to waive his Fifth Amendment privilege was voluntary. He alleges no “coercion of a confession by physical violence or other deliberate means calculated to break [his] will,” Oregon v. Elstad, 470 U. S. 298, 312 (1985), and the trial court found none. His allegation that the police failed to supply him with certain information does not relate to any of the traditional indicia of coercion: “the duration and conditions of detention . . . , the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control.” Culombe v. Connecticut, 367 U. S. 568, 602 (1961) (opinion of Frankfurter, J.). Absent evidence that Spring’s “will [was] overborne and his capacity for self-determination critically impaired” because of coercive police conduct, ibid.; see Colorado v. Connelly, 479 U. S. 157, 163-164 (1986), his waiver of his Fifth Amendment privilege was voluntary under this Court’s decision in Miranda.

There also is no doubt that Spring’s waiver of his Fifth Amendment privilege was knowingly and intelligently made: that is, that Spring understood that he had the right to remain silent and that anything he said could be used as evidence against him. The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Moran v. Burbine, supra, at 422; Oregon v. Elstad, supra, at 316-317. The Fifth Amendment’s guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect. The Miranda warnings protect this privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.

In this case there is no allegation that Spring failed to understand the basic privilege guaranteed by the Fifth Amendment. Nor is there any allegation that he misunderstood the consequences of speaking freely to the law enforcement officials. In sum, we think that the trial court was indisputably correct in finding that Spring’s waiver was made knowingly and intelligently within the meaning of Miranda.

hH b-1

A

Spring relies on this Court’s statement in Miranda that “any evidence that the accused was threatened, tricked, or cajoled into a waiver will. . . show that the defendant did not voluntarily waive his privilege. ” 384 U. S., at 476. He contends that the failure to inform him of the potential subjects of interrogation constitutes the police trickery and deception condemned in Miranda, thus rendering his waiver of Miranda rights invalid. Spring, however, reads this statement in Miranda out of context and without due regard to the constitutional privilege the Miranda warnings were designed to protect.

We note first that the Colorado courts made no finding of official trickery. In fact, as noted above, the trial court expressly found that “there was no element of duress or coercion used to induce Spring’s statements.” Supra, at 573. Spring nevertheless insists that the failure of the ATF agents to inform him that he would be questioned about the murder constituted official “trickery” sufficient to invalidate his waiver of his Fifth Amendment privilege, even if the official conduct did not amount to “coercion.” Even assuming that Spring’s proposed distinction has merit, we reject his conclusion. This Court has never held that mere silence by law enforcement officials as to the subject matter of an interrogation is “trickery” sufficient to invalidate a suspect’s waiver of Miranda rights, and we expressly decline so to hold today.

Once Miranda warnings are given, it is difficult to see how official silence could cause a suspect to misunderstand the nature of his constitutional right — “his right to refuse to answer any question which might incriminate him.” United States v. Washington, 431 U. S. 181, 188 (1977). “Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled.” Ibid. We have held that a valid waiver does not require that an individual be informed of all information “useful” in making his decision or all information that “might . . . affec[t] his decision to confess.” Moran v. Burbine, 475 U. S., at 422. “[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.” Ibid. Here, the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature. Accordingly, the failure of the law enforcement officials to inform Spring of the subject matter of the interrogation could not affect Spring’s decision to waive his Fifth Amendment privilege in a constitutionally significant manner.

B

This Court’s holding in Miranda specifically required that the police inform a criminal suspect that he has the right to remain silent and that anything he says may be used against him. There is no qualification of this broad and explicit warning. The warning, as formulated in Miranda, conveys to a suspect the nature of his constitutional privilege and the consequences of.abandoning it. Accordingly, we hold that a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.

f — I <1

The judgment of the Colorado Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Marshall,

with whom Justice Brennan joins, dissenting.

The Court asserts there is “no doubt” that respondent Spring’s decision to waive his Fifth Amendment privilege was voluntarily, knowingly, and intelligently made. Ante, at 573 and 574. I agree, however, with the Colorado Supreme Court that a significant doubt exists in the circumstances of this case and thus the State has failed to carry the “heavy burden” recognized in Miranda v. Arizona, 384 U. S. 436, 475 (1966), for establishing the constitutional validity of Spring’s alleged waiver.

Consistent with our prior decisions, the Court acknowledges that a suspect’s waiver of fundamental constitutional rights, such as Miranda’s protections against self-incrimination during a custodial interrogation, must be examined in light of the “‘“totality of the circumstances.””’ Ante, at 573, quoting Moran v. Burbine, 475 U. S. 412, 421 (1986), in turn quoting Fare v. Michael C., 442 U. S. 707, 725 (1979); see also id., at 724-725; North Carolina v. Butler, 441 U. S. 369, 374-375 (1979); Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Nonetheless, the Court proceeds to hold that the specific crimes and topics of investigation known to the interrogating officers before questioning begins are “not relevant” to, and in this case “could not affect,” the validity of the suspect’s decision to waive his Fifth Amendment privilege. Ante, at 577. It seems to me self-evident that a suspect’s decision to waive this privilege will necessarily be influenced by his awareness of the scope and seriousness of the matters under investigation.

To attempt to minimize the relevance of such information by saying that it “could affect only the wisdom of” the suspect’s waiver, as opposed to the validity of that waiver, ventures an inapposite distinction. Ibid. Wisdom and validity in this context are overlapping concepts, as circumstances relevant to assessing the validity of a waiver may also be highly relevant to its wisdom in any given context. Indeed, the admittedly “critical” piece of advice the Court recognizes today — that the suspect be informed that whatever he says may be used as evidence against him — is certainly relevant to the wisdom of any suspect’s decision to submit to custodial interrogation without first consulting his lawyer. Ante, at 574. The Court offers no principled basis for concluding that this is a relevant factor for determining the validity of a waiver but that, under what it calls a totality of the circumstances analysis, a suspect’s knowledge of the specific crimes and other topics previously identified for questioning can never be. -

The Court quotes Moran v. Burbine, supra, at 422, as holding that “a valid waiver does not require that an individual be informed of all information ‘useful’ in making his decision or all information that ‘might . . . affec[t] his decision to confess.’” Ante, at 576 (emphasis added). Noticeably similar is the Court’s holding today: “[A] suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining” the validity of his waiver. Ante, at 577 (emphasis added). This careful phraseology avoids the important question whether the lack of any indication of the identified subjects for questioning is relevant to determining the validity of the suspect’s waiver.

I would include among the relevant factors for consideration whether before waiving his Fifth Amendment rights the suspect was aware, either through the circumstances surrounding his arrest or through a specific advisement from the arresting or interrogating officers, of the crime or crimes he was suspected of committing and about which they intended to ask questions. To hold that such knowledge is relevant would not undermine the “‘virtue of informing police and prosecutors with specificity’ as to how a pretrial questioning of a suspect must be conducted,” ante, at 577, n. 9 (quoting Fare v. Michael C., supra, at 718), nor would it interfere with the use of legitimate interrogation techniques. Indeed, requiring the officers to articulate at a minimum the crime or crimes for which the suspect has been arrested could contribute significantly toward ensuring that the arrest was in fact lawful and the suspect’s statement not compelled because of an error at this stage alone, a problem we addressed in Brown v. Illinois, 422 U. S. 590, 601 (1975), under the Fourth Amendment on the assumption that the defendant’s waiver of his Fifth Amendment rights in that case had been voluntary. See also Dunaway v. New York, 442 U. S. 200, 217 (1979) (voluntary waiver of Miranda warnings is a threshold requirement for Fourth Amendment analysis).

The interrogation tactics utilized in this case demonstrate the relevance of the information Spring did not receive. The agents evidently hoped to obtain from Spring a valid confession to the federal firearms charge for which he was arrested and then parlay this admission into an additional confession of first-degree murder. Spring could not have expected questions about the latter, separate offense when he agreed to waive his rights, as it occurred in a different State and was a violation of state law outside the normal investigative focus of federal Alcohol, Tobacco, and Firearms agents.

“Interrogators describe the point of the first admission as the ‘breakthrough’ and the ‘beachhead,’ R. Royal & S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide 143 (1976), which once obtained will give them enormous ‘tactical advantages,’ F. Inbau & J. Reid, Criminal Interrogation and Confessions 82 (2d ed. 1967).” Oregon v. Elstad, 470 U. S. 298, 328 (1985) (Brennan, J., dissenting). The coercive aspects of the psychological ploy intended in this case, when combined with an element of surprise which may far too easily rise to a level of deception, cannot be justified in light of Miranda’s strict requirements that the suspect’s waiver and confession be voluntary, knowing, and intelligent. 384 U. S., at 445-458, 475-476. If a suspect has signed a waiver form with the intention of making a statement regarding a specifically alleged crime, the Court today would hold this waiver valid with respect to questioning about any other crime, regardless of its relation to the charges the suspect believes he will be asked to address. Yet once this waiver is given and the intended statement made, the protections afforded by Miranda against the “inherently compelling pressures” of the custodial interrogation, id., at 467, have effectively dissipated. Additional questioning about entirely separate and more serious suspicions of criminal activity can take unfair advantage of the suspect’s psychological state, as the unexpected questions cause the compulsive pressures suddenly to reappear. Given this technique of interrogation, a suspect’s understanding of the topics planned for questioning is, therefore, at the very least “relevant” to assessing whether his decision to talk to the officers was voluntarily, knowingly, and intelligently made.

Not only is the suspect’s awareness of the suspected criminal conduct relevant, its absence may be determinative in a given case. The State’s burden of proving that a suspect’s waiver was voluntary, knowing, and intelligent is a “heavy” one. Miranda, 384 U. S., at 475. We are to “‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights” and we shall “‘not presume acquiescence in the loss of fundamental rights.’” Johnson, 304 U. S., at 464 (citations omitted); see Brewer v. Williams, 430 U. S. 387, 404 (1977). It is reasonable to conclude that, had Spring known of the federal agents’ intent to ask questions about a murder unrelated to the offense for which he was arrested, he would not have consented to interrogation without first consulting his attorney. In this case, I would therefore accept the determination of the Colorado Supreme Court that Spring did not voluntarily, knowingly, and intelligently waive his Fifth Amendment rights. 713 P. 2d 865, 873-874 (1985).

I dissent.

       Under this Court’s decision in Miranda v. Arizona, 384 U. S. 436 (1966), prior to a custodial interrogation a criminal suspect must “be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id., at 444.

       Spring also moved to suppress a third statement made on July 13, 1979, after he had pleaded guilty to the federal firearms offenses and after an information charging him with murder had been issued in Colorado. The Colorado Supreme Court unanimously concluded that the statement should be suppressed because the questioning officials made no effort “to reaffirm Spring’s decision to waive his constitutional rights after he declined to answer particular questions.” 713 P. 2d 865, 878 (1985). We granted certiorari only on the question whether the second statement should have been admitted into evidence. 476 U. S. 1104 (1986). Accordingly, the admissibility of the third statement is not before us.

       The Colorado Supreme Court followed the lead of several Federal Courts of Appeals in holding that a suspect’s awareness of the subject matter of the interrogation is one factor to be considered in determining whether a waiver of the Fifth Amendment privilege is valid. United States v. Burger, 728 F. 2d 140, 141 (CA2 1984); Carter v. Garrison, 656 F. 2d 68, 70 (CA4 1981) (per curiam), cert. denied, 455 U. S. 952 (1982); United States v. McCrary, 643 F. 2d 323, 328 (CA5 1981). Other Courts of Appeals have found that a suspect’s awareness of the subject matter of interrogation is not a relevant factor in determining the validity of a Miranda waiver. United States v. Anderson, 175 U. S. App. D. C. 75, 77, n. 3, 533 F. 2d 1210, 1212, n. 3 (1976); United States v. Campbell, 431 F. 2d 97, 99, n. 1 (CA9 1970).

       The State argued for the first time in its petition for rehearing to the Colorado Supreme Court that this Court’s decision in Oregon v. Elstad, 470 U. S. 298 (1985), renders the May 26 statement admissible without regard to the validity of the March 30 waiver. The Colorado Supreme Court noted that the State would be free to make this argument to the trial court on remand. 713 P. 2d, at 876. The question whether our decision in Oregon v. Elstad provides an independent basis for admitting the May 26 statement therefore is not before us in this case.

       This privilege is applicable to the States through the Due Process Clause of the Fourteenth Amendment of the Constitution. Malloy v. Hogan, 378 U. S. 1 (1964).

       The State does not dispute that the statement at issue was obtained during a “custodial interrogation” within the meaning of Miranda.

       The trial court found: “Though it is true that [the ATF agents] did not specifically advise Spring that a part of their interrogation would include questions about the Colorado homicide, the questions themselves suggested the topic of inquiry.” App. to Pet. for Cert. 4-A. According to the Colorado Supreme Court, “It is unclear whether Spring was told by the agents that they wanted to question him specifically about the firearms violations for which he was arrested or whether the agents simply began questioning Spring without making any statement concerning the subject matter of the interrogation. What is clear is that the agents did not tell Spring that they were going to ask him questions about the killing of Walker before Spring made his original decision to waive his Miranda rights.” 713 P. 2d, at 871.

       In certain circumstances, the Court has found affirmative misrepresentations by the police sufficient to invalidate a suspect’s waiver of the Fifth Amendment privilege. See, e. g., Lynumn v. Illinois, 372 U. S. 528 (1963) (misrepresentation by police officers that a suspect would be deprived of state financial aid for her dependent child if she failed to cooperate with authorities rendered the subsequent confession involuntary); Spano v. New York, 360 U. S. 315 (1959) (misrepresentation by the suspect’s friend that the friend would lose his job as a police officer if the suspect failed to cooperate rendered his statement involuntary). In this case, we are not confronted with an affirmative misrepresentation by law enforcement officials as to the scope of the interrogation and do not reach the question whether a waiver of Miranda rights would be valid in such a circumstance.

       Such an extension of Miranda would spawn numerous problems of interpretation because any number of factors could affect a suspect’s decision to waive his Miranda rights. The requirement would also vitiate to a great extent the Miranda rule’s important “virtue of informing police and prosecutors with specificity” as to how a pretrial questioning of a suspect must be conducted. Fare v. Michael C., 442 U. S. 707, 718 (1979).

       The Court rejects, for now, the notion that “mere silence” by law enforcement officials may deprive the suspect of information so relevant to his decision to waive his Miranda rights as to constitute deception, though it does acknowledge that circumstances can arise in which an affirmative misrepresentation by the officers will invalidate the suspect’s waiver. Ante, at 576, and n. 8. In Moran v. Burbine, 475 U. S. 412, 453 (1986), I joined Justice Stevens’ dissenting opinion, which stated that “there can be no constitutional distinction . . . between a deceptive misstatement and the concealment by the police of the critical fact that an attorney retained by the accused or his family has offered assistance I would hold the officers’ failure in the present case to inform Spring of their intent to question him about the Colorado murder equally critical. Miranda v. Arizona, 384 U. S. 436 (1966), places an especially heavy burden on the State to show that a suspect waived his privilege against self-incrimination: “[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” Id., at 476 (emphasis added). I would hold that the interrogating officers’ preconceived plan in this case to obtain a waiver from Spring with reference to a particular federal offense and then ask about a separate, unrelated state offense precludes the State from carrying that heavy burden.

       Nothing in the Court’s decision today precludes the courts of Colorado from interpreting that State’s Constitution as independently recognizing a suspect’s knowledge of the intended scope of interrogation as a relevant factor for determining whether he validly waived his right against self-incrimination under state law. See Colo. Const., Art. II, § 18.


text:
    October 6, 1986

    No. 85-1890.
    Garland Independent School District et al. v. Texas State Teachers Assn. et al.

       Justice Scalia took no part in the consideration or decision of the orders announced on this date except for the order making allotment of Justices among the Circuits, see ante, p. v.

   Affirmed on appeal from C. A. 5th Cir.

The Chief Justice and Justice White would note probable jurisdiction and set case for argument.


text:
    No. 85-1979.
    Bowsher, Comptroller General of the United States, et al. v. American Federation of Government Employees, AFL-CIO, et al.
   Affirmed on appeal from D. C. D. C.


text:
    No. 85-1953.
    Kansas City Power & Light Co. v. State Corporation Commission of Kansas et al.
   Appeal from Sup. Ct. Kan. dismissed for want of substantial federal question.


text:
    No. 85-2033.
    Ninth Street Community Paving Project Committee et al. v. City of Ironton, Ohio, et al.
   Appeal from Sup. Ct. Ohio dismissed for want of substantial federal question.


text:
    No. 85-2057.
    Consolidated Edison Company of New York, Inc. v. State Board of Equalization and Assessment et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 85-2112.
    Lodi Truck Service, Inc. v. Division of Labor Standards Enforcement, Department of Industrial Relations of California.
   Appeal from App. Dept., Super. Ct. Cal., County of San Joaquin, dismissed for want of substantial federal question.


text:
    No. 85-2161.
    Petrowski v. Norwich Free Academy et al.
   Appeal from Sup. Ct. Conn, dismissed for want of substantial federal question.


text:
    No. 85-2170.
    Drociak v. Supreme Court of New Hampshire.
   Appeal from Sup. Ct. N. H. dismissed for want of substantial federal question.


text:
    No. 85-6767.
    Chicco v. Starecheski et al.
   Appeal from Sup. Jud. Ct. Mass, dismissed for want of substantial federal question.


text:
    No. 86-14.
    Buckley v. Pennsylvania.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 86-122.
    Thompson v. Thompson.
   Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of substantial federal question.


text:
    No. 86-168.
    D. R. Mertens, Inc. v. Florida Department of Insurance.
   Appeal from Dist. Ct. App. Fla., 1st Dist., dismissed for want of substantial federal question.


text:
    No. 86-201.
    Zuckerman Property Enterprises, Ltd., et al., dba Pinecrest Country Club v. Husti et al.
   Appeal from Sup. Ct. Conn, dismissed for want of substantial federal question.


text:
    No. 85-1980.
    Noffsinger et al. v. Bank of Central Florida.
   Appeal from C. A. 11th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-1990.
    Sterner v. Andre et al.
   Appeal from Sup. Ct. Va. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-2005.
    Lewis et al. v. McMasters et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-2046.
    Horwitz v. State Board of Medical Examiners of Colorado et al.
   Appeal from Ct. App. Colo, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-2074.
    Bracy v. Labor and Industry Review Commission.
   Appeal from Ct. App. Wis. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-2083.
    Judge v. Virginia et al.
   Appeal from Cir. Ct. Accomack County, Va., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-2129.
    Bergen v. Martindale-Hubbell, Inc.
   Appeal from Ct. App. Ga. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6844.
    Pulley v. Scott et al.
   Appeal from Sup. Ct. Tenn. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-7142.
    Staradumsky v. Tomlinson Transportation, Inc., et al.
   Appeal from Sup. Ct. R. I. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-35.
    Polyak v. Hulen et al. (two cases).
   Appeals from C. A. 6th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeals were taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-109.
    Delucchi et ux. v. County of Santa Cruz et al.
   Appeal from Ct. App. Cal., 6th App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-136.
    Islamic Republic of Iran et al. v. Pahlavi.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-150.
    Fenendael et ux. v. Zobel, by Hancox et al., Guardians.
   Appeal from Ct. App. Wis. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-182.
    Polyak v. Buford Evans & Sons.
   Appeal from C. A. 6th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-213.
    Fields et al. v. Lewis et al.
   Appeal from Ct. App. Ky. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-5025.
    Dawn et al. v. Greene et al.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-5061.
    Perkins v. Hartigan, Attorney General of Illinois.
   Appeal from C. A. 7th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-5181.
    In re Nuey.
   Appeal from C. A. 3d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-5224.
    Viola v. Arizona.
   Appeal from Ct. App. Ariz. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-7190.
    Betka v. Bowen, Secretary of Health and Human Services.
   Appeal from D. C. Ore. dismissed for want of jurisdiction.


text:
    No. 86-56.
    Shoecraft v. Catholic Social Services Bureau, Inc., et al.
   Appeal from Sup. Ct. Neb. dismissed as moot.


text:
    No. 85-1959.
    United States v. McAfee et al.
   C. A. 1st Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Henderson v. United States, 476 U. S. 321 (1986).


text:
    No. 85-2110.
    Kelly, Superintendent, Attica Correctional Facility, et al. v. Matusiak.
   C. A. 2d Cir. Certio-rari dismissed in light of the suggestion of death of respondent.


text:
    No. 85-2128.
    Florida v. Cross.
   Sup. Ct. Fla. Certiorari dismissed in light of the suggestion of death of respondent.


text:
    No. 86-5500.
    Rook v. Rice, Warden.
   C. A. 4th Cir. Certiorari dismissed as moot.


text:
    No.-.
    No.-.
    Carter v. Woodruff et al.; and Galin v. Dow Chemical Pacific Ltd. et al.
   Motions to direct the Clerk to file the petitions for writs of certio-rari out of time denied.


text:
    No. A-136 (86-173).
    Harris v. Attorney General of Virginia et al.
   C. A. 4th Cir. Application for bail, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-212.
    Kowalik v. United States.
   C. A. 10th Cir. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. D-556.
    In re Disbarment of Sodowick.
   Michael Samuel Sodowick, of West Caldwell, N. J., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on May 5, 1986 [476 U. S. 1102], is hereby discharged.


text:
    No. 35,
    Orig.
    United States v. Maine et al.
    [For earlier decision herein, see, e. g., 475 U. S. 89.]
   Accounting of the Special Master for the Massachusetts Boundary case is received and ordered filed.


text:
    No. 65,
    Orig.
    Texas v. New Mexico.
    [For earlier order herein, see, e. g., 475 U. S. 1004.]
   Report of the Special Master is received and ordered filed. Exceptions to the Report, with supporting briefs, may be filed by the parties within 45 days. Replies thereto, if any, may be filed within 30 days. Motion of the Special Master for award of interim fee allowance granted.


text:
    No. 84-6811.
    McCleskey v. Kemp, Superintendent, Georgia Diagnostic and Classification Center.
   C. A. 11th Cir. [Certiorari granted, 478 U. S. 1019.] Motions of Congressional Black Caucus et al., International Human Rights Law Group, and Franklin M. Fisher et al. for leave to file briefs as amici curiae granted.


text:
    No. 85-129.
    Wimberly v. Labor and Industrial Relations Commission of Missouri et al.
   Sup. Ct. Mo. [Certio-rari granted, 475 U. S. 1118.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-1433.
    Richardson, Warden v. Marsh.
   C. A. 6th Cir. [Certiorari granted, 476 U. S. 1168.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-1630.
    Hewitt et al. v. Helms.
   C. A. 3d Cir. [Cer-tiorari granted, 476 U. S. 1181.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-1695.
    Société Nationale Industrielle Aéro-Spatiale et al. v. United States District Court for the Southern District of Iowa.
   C. A. 8th Cir. [Certiorari granted, 476 U. S. 1168.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-1043.
    Pilot Life Insurance Co. v. Dedeaux.
   C. A. 5th Cir. [Certiorari granted, 478 U. S. 1004.] Motion of American Council of Life Insurance et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-1199.
    First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California.
   Ct. App. Cal., 2d App. Dist. [Probable jurisdiction noted, 478 U. S. 1003.] Further consideration of the motion of appellee to dismiss the appeal is deferred to the hearing of the case on the merits.


text:
    No. 85-1200.
    California Coastal Commission et al. v. Granite Rock Co.
   C. A. 9th Cir. [Probable jurisdiction postponed, 475 U. S. 1094.] Further consideration of the motion of appellee to strike portions of the brief and appendix of the Big Sur Foundation et al. as amici curiae is deferred to the hearing of the case on the merits. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-1206.
    Rose v. Rose et al.
   Ct. App. Tenn. [Probable jurisdiction noted, 478 U. S. 1003.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of appellees for divided argument granted.


text:
    No. 85-1239.
    No. 85-1406.
    Amoco Production Co. et al. v. Village of Gambell et al.; and Hodel, Secretary of the Interior, et al. v. Village of Gambell et al.
   C. A. 9th Cir. [Certiorari granted, 476 U. S. 1157.] Motion of the Solicitor General for divided argument granted.


text:
    No. 85-1358.
    Lukhard, Commissioner, Virginia Department of Social Services v. Reed et al.
   C. A. 4th Cir. [Certiorari granted, 477 U. S. 903.] Motion of the Solicitor General for divided argument granted.


text:
    No. 85-1329.
    Young et al. v. United States ex rel. Vuitton et Fils S. A. et al.
   C. A. 2d Cir. [Certiorari granted, 477 U. S. 903.] Motion of petitioner Sol N. Klayminc to proceed further herein informa pauperis granted.


text:
    No. 85-1347.
    Pennsylvania v. Ritchie.
   Sup. Ct. Pa. [Certiorari granted, 476 U. S. 1139.] Motion of Sunny von Bulow National Victim Advocacy Center, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-1384.
    Turner et al. v. Safley et al.
   C. A. 8th Cir. [Certiorari granted, 476 U. S. 1139.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument denied.


text:
    No. 85-1520.
    Anderson v. Creighton et al.
   C. A. 8th Cir. [Certiorari granted, 478 U. S. 1003.] Motion of Ronald I. Meshbesher, Esquire, to permit John P. Sheehy, Esquire, to present oral argument pro hac vice granted.


text:
    No. 85-1656.
    McCotter, Director, Texas Department of Corrections v. Petty.
   C. A. 5th Cir. [Certiorari granted, 478 U. S. 1003.] Motion of respondent for leave to proceed further herein in forma pauperis granted. Motion for appointment of counsel granted, and it is ordered that John R. Breihan, Esquire, of Austin, Tex., be appointed to serve as counsel for respondent in this case.


text:
    No. 85-1740.
    Kananen et ux. v. Sun Bank Okeechobee, fka Commercial Bank Okeechobee, Florida, et al.
   476 U. S. 1182. Motion of respondent for damages denied.