author: Justice Marshall,

text:
    No. 85-7165.
    Grandison v. Maryland.
   Ct. App. Md. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner Anthony Grandison was sentenced to death by an improperly instructed jury and did not have the benefit of representation at his sentencing hearing. Because I believe that the jury’s instructions under the Maryland statute improperly shifted to petitioner the burden of disproving the appropriateness of his death sentence, and that the denial of a request for legal representation in the sentencing phase of a bifurcated capital proceeding constitutes a violation of the Sixth Amendment right to counsel, I dissent.

I

Petitioner was tried for murder, conspiracy to commit murder, and use of a handgun in the commission of a crime of violence, for hiring someone to kill two witnesses scheduled to testify against him in his trial on federal drug charges. The jury found petitioner guilty on all charges and sentenced him to death. Petitioner claims that the Maryland capital sentencing statute and the verdict sheet provided to the jury improperly imposed upon him the burden of proof at the sentencing phase. I continue to believe that this issue is worthy of review. See Huffington v. Maryland, 478 U. S. 1023 (1986) (Marshall, J,, dissenting from denial of certiorari); Stebbing v. Maryland, 469 U. S. 900 (1984) (Marshall, J., dissenting from denial of certiorari).

The State argues that petitioner’s claim is foreclosed by a state-court construction of the statute holding that the prosecution bears the burden of persuasion. See Foster v. State, 304 Md. 439, 476-480, 499 A. 2d 1236, 1256-1257 (1985). In this case, however, the jury was provided with a verdict sheet that unambiguously directed the jurors to return a sentence of death unless mitigating circumstances outweighed aggravating circumstances. The Maryland Court of Appeals may construe the statute to avoid any constitutional difficulty. But the trial court’s instructions and the verdict form submitted to the jury must reflect that construction. Here, the verdict form did not; the constitutional infirmity therefore remains undiminished.

II

At his arraignment, petitioner asserted the right to represent himself under Faretta v. California, 422 U. S. 806 (1975). Petitioner was informed of his right to counsel, the dangers of self-representation, and the advantages of having counsel to assist at trial and sentencing. Petitioner nonetheless chose to proceed pro se. He was granted the right to have “standby” counsel, but conducted his own defense. The jury returned a verdict of guilty on all counts.

At the first scheduled sentencing proceeding, petitioner asked the court to appoint the lawyer who had served as standby counsel to represent him in the sentencing proceeding. He also sought a continuance, since neither he nor his counsel was prepared to go forward. The court refused to terminate petitioner’s self-representation, stating:

“Once the decision is made regarding self-representation, if it is properly made prior to trial, the request to change rests solely within the discretion of the trial court. The right must be timely asserted. It must be asserted before the trial starts. Of course, this is not timely asserted. Whether we continue with it or not, what I am inclined to do about self-representation is leave it just like it is, and let [standby counsel] take over and handle the proceeding as standby counsel with Mr. Grandison’s permission. Grandison will still be the attorney.” Pet. for Cert. 8-9.

Moreover, the court instructed standby counsel: “Keep in mind, Mr. Crawford, you are not the attorney in this. Mr. Grandison is his own attorney. You are just kind of a law clerk.” Id., at 9. The court granted an 8-day continuance; at the reconvened sentencing hearing, it again made clear that Grandison was representing himself, albeit with the assistance of standby counsel.

Assuming for the sake of argument that in a worebifurcated criminal proceeding a trial judge could in some circumstances deny a defendant who initially asserted his right to represent himself the right to later change his mind and proceed with counsel, such a rule would not imply that a waiver of counsel in the guilt phase of-a capital proceeding requires a defendant to proceed pro se, against his will, in the sentencing phase. The Maryland Court of Appeals cursorily dismissed petitioner’s claim that, because capital sentencing constituted a separate trial, he was entitled to make a new decision about whether he wanted counsel or not. 305 Md. 685, 752, 506 A. 2d 580, 613 (1986). I find this claim worthy of considerably more attention than the Maryland court gave it.

In Bullington v. Missouri, 451 U. S. 430 (1981), this Court held that the Double Jeopardy Clause applied to the sentencing phase of a bifurcated trial. It did so because it found that a sentencing hearing was like a separate trial. “The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment.” Id., at 438. Under the Maryland statute, Md. Ann. Code, Art. 27, § 413 (1982 and Supp. 1986), sentencing is similarly a separate adversarial proceeding, see § 413(a). It may require selection of a new jury, see §§413(b)(2)(i)-(iv). Evidence is offered, § 413(c)(1); the parties may present argument, § 413(c)(2); the jury is instructed, § 413(c)(3); and the jury deliberates and determines sentence. The Maryland proceeding is in all respects a separate trial on the issue of punishment. The waiver of the right to counsel at the first “trial” on guilt or innocence should therefore have no more bearing on a defendant’s right to counsel in the sentencing phase than it would on that defendant’s right to counsel in a separate trial on related crimes. It should under no circumstances irrevocably bind a defendant in the sentencing phase.

The trial court articulated no basis for refusing petitioner’s request to appoint counsel. Even at midtrial in a nonbifarcated proceeding, a trial court’s unexplained refusal to permit a defendant to revoke his assertion of the right to self-representation would surely constitute an abuse of discretion. A trial court cannot insist that a defendant continue representing himself out of some punitive notion 'that that defendant, having made his bed, should be compelled to lie in it. Yet in this case, where petitioner’s right to counsel was triggered anew by the start of a new trial on the issue of punishment, the trial court refused, entirely without justification, to permit him to assert that right to counsel. This refusal deprived petitioner of his constitutional right to be represented during his sentencing hearing. Accordingly, I dissent.

      1 note in addition that petitioner raises issues related to those that will be before the Court in California v. Brown, No. 86-1663, to be argued later this Term. I would at the very least delay disposition of this petition until that ease is decided.


source: Caselaw Access Project

license: Public Domain

text:
    No. 85-7195.
    Plummer et ux. v. Pennsylvania Department of Public Welfare.
   C. A. 3d Cir. Certiorari before judgment denied.


text:
    No. 86-3.
    Daly v. Daly.
   Sup. Ct. Nev. Motion of Women Lawyer’s Association of Los Angeles for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 86-25.
    Burggraf Corp. et al. v. Goodyear Tire & Rubber Co. et al.
   C. A. 10th Cir. Petition for writ of certio-rari and/or mandamus denied.


text:
    No. 86-127.
    Sherlock v. Merced Union High School District.
   C. A. 9th Cir. Certiorari denied.

Justice Powell would grant certiorari.


text:
    No. 86-149.
    Patroff v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for writ of certiorari and reverse the conviction.


text:
    No. 86-211.
    No. 86-216.
    Piccinin v. A. H. Robins Co., Inc., et al.; and Committee of Representatives of Dalkon Shield Claimants v. A. H. Robins Co., Inc.

      See also note, p. 801.

   C. A. 4th Cir. Certiorari denied.

Justice Powell took no part in the consideration or decision of these petitions.

Reported below: 788 F. 2d 994.


text:
    No. 85-1584.
    No. 85-5432.
    No. 85-6676.
    Niedzwiecki v. Circuit Protective Devices, Division of Westinghouse Electric Corp., Goldblatt v. Vogel et al., Neal v. Illinois,
   476 U. S. 1110;

474 U. S. 952; and

476 U. S. 1165. Petitions for

rehearing denied.


text:
    No. 85-5942.
    No. 85-6527.
    Cotton v. Federal Land Bank of Columbia, Gray v. Cody, Attorney General of Tennessee, et al.,
   474 U. S. 1104; and

476 U. S. 1184. Motions for leave to file petitions for rehearing denied.


text:
    October 8, 1986
    No. 85-2137.
    Buhler-Maig, Inc. v. Dempster et al.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    October 10, 1986
    No. 86-55.
    Witco Chemical Corp. v. Peachtree Doors, Inc., et al.
   C. A. Fed. Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Brennan and Justice Marshall,

text:
    No. A-269.
    DeLuna v. Texas.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay in order to give the applicant time to file a petition for writ of certiorari and would grant the petition and vacate the death sentence in this case.


text:
    October 14, 1986

      No. 85-1886.
    National Association of Retired Federal Employees et al. v. Horner, Director, Office of Personnel Management, et al.
   Affirmed on appeal from D. C. D. C.


text:
    No. 86-236.
    Mareno v. Roberts, Commissioner of Labor of the State of New York.
   Appeal from App. Div., Sup. Ct. N. Y., 3d Jud. Dept., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-257.
    Pointon, dba Sierra Pointon Fund, Inc. v. Fidelity National Bank, N. A.
   Appeal from Ct. App. Okla. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-302.
    Chisum v. Ravine et al.
   Appeal from Sup. Ct. Alaska dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 86-5358.
    Perkins v. Hartigan, Attorney General of Illinois, et al.
   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. 86-265.
    G & M Richmond v. City of Richmond Heights, Ohio.
   Appeal from Ct. App. Ohio, Cuyahoga County, dismissed for want of substantial federal question.


text:
    No. 86-5329.
    Saadiq v. Iowa.
   Appeal from Sup. Ct. Iowa dismissed for want of substantial federal question.


text:
    No. 86-287.
    Crown Oil Corp. et al. v. Lapidus Popcorn, Inc.
   Appeal from Ct. App. Cal., 1st App. Dist. Motion of Atlantic Richfield Co. et al. for leave to file a brief as amici curiae granted. Appeal dismissed for want of jurisdiction.


text:
    No. 86-288.
    Rhode Island v. Mattatall.
   Sup. Ct. R. I. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Kuhlmann v. Wilson, 477 U. S. 436 (1986).


text:
    No. A-202.
    Khabiri et al. v. Toll et al.
   Application for injunction and other relief, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-262 (86-567).
    Curry et al. v. Baker et al.
   C. A. 11th Cir. Application for stay, addressed to The Chief Justice and referred to the Court, denied. Motion of petitioners to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 106,
    Orig.
    Illinois v. Kentucky.
   Motion for leave to file bill of complaint granted. Defendant is allowed 60 days within which to file an answer.


text:
    No. 85-781.
    Burke, Acting Archivist of the United States, et al. v. Barnes et al.
   C. A. D. C. Cir. [Certiorari granted, 475 U. S. 1044.] Motion of respondents for divided argument denied.

Justice Scalia took no part in the consideration or decision of this motion.


text:
    No. 85-1329.
    No. 85-6207.
    Young et al. v. United States ex rel. Vuitton et Fils S. A. et al.; and Klayminc v. United States ex rel. Vuitton et Fils S. A. et al.
   C. A. 2d Cir. [Certiorari granted, 477 U. S. 903.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-5939.
    Cruz v. New York.
   Ct. App. N. Y. [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. 85-1384.
    Turner et al. v. Safley et al.
   C. A. 8th Cir. [Certiorari granted, 476 U. S. 1139.] Motions of The Correctional Association of New York, Prisoners’ Legal Services of New York, Inc., et al., and Guadalupe Guajardo, Jr., et al. for leave to file briefs as amici curiae granted.


text:
    No. 85-1589.
    Iowa Mutual Insurance Co. v. LaPlante et al.
   C. A. 9th 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. 86-279.
    Basic Inc. et al. v. Levinson et al.
   C. A. 6th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

The Chief Justice took no part in the consideration or decision of this order.


text:
    No. 86-569.
    Graddick, Attorney General of Alabama v. Henderson et al.
   Appeal from D. C. M. D. Ala. Motion of appellant to expedite consideration of the statement as to jurisdiction denied.


text:
    No. 86-5306.
    Willis v. Lane, Judge, et al.
   C. A. Fed. Cir. Motion of petitioner for leave to proceed informa pauperis denied. Petitioner is allowed until November 4, 1986, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed informa pauperis.


text:
    No. 86-5290.
    In re Plummer et ux.
   C. A. 3d Cir. Petition for writ of common-law certiorari denied.


text:
    No. 86-5363.
    No. 86-5502.
    No. 86-5531.
    In re Johnson; In re Morrow; and In re Jacobs.
   Petitions for writs of habeas corpus denied.


text:
    No. 86-5284.
    No. 86-5357.
    In re Henkel; and In re Owens.
   Petitions for writs of mandamus denied.


text:
    No. 85-673.
    Hartigan, Attorney General of the State of Illinois, et al. v. Zbaraz et al.
   Appeal from C. A. 7th Cir. Further consideration of question of jurisdiction postponed to hearing of case on the merits, which is limited to Question 1 presented by the jurisdictional statement.


text:
    No. 85-1772.
    Utah Division of State Lands v. United States et al.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 85-1835.
    California v. Rooney.
   Ct. App. Cal., 2d App. Dist. Certiorari granted.


text:
    No. 85-1722.
    O’Lone, Administrator, Leesburg Prison Complex, et al. v. Estate of Shabazz et al.
   C. A. 3d Cir.

Motion of respondents for leave to proceed informa pauperis and certiorari granted.


text:
    No. 86-108.
    Hilton, Superintendent, New Jersey State Prison, et al. v. Braunskill.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 85-6725.
    Bourjaily v. United States.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis granted and certiorari granted limited to the following questions:

“1. Whether, in order to admit an alleged co-conspirator’s declarations against a defendant under Federal Rule of Evidence 801(d)(2)(E), the court must determine by independent evidence a) that a conspiracy existed, and b) that the declarant and the defendant were members of this conspiracy?

“2. Assuming that the court must make these determinations, upon what quantum of independent proof must they be based?

“3. Whether, as a requirement for the admission of a co-conspirator’s statement against a defendant, the court must assess the circumstances of the case to determine whether the statement carries with it sufficient indicia of reliability?”


text:
    No. 86-5020.
    Booth v. Maryland.
   Ct. App. Md. Motion of petitioner for leave to proceed informa pauperis granted and cer-tiorari granted limited to Question 3 presented by the petition.


text:
    No. 85-1869.
    Hook v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1883.
    Marotta v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-1974.
    Whittington et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-2134.
    Estate of Gilmore, by Gilmore, Executor v. Buckley et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-2157.
    Aluminum Assn., Inc., et al. v. Norfolk & Western Railway Co. et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-6884.
    Rahman et al. v. Grey et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-7124.
    Carey v. Wyoming.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 85-7128.
    Taylor v. Marquez.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-8.
    Masi v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-9.
    Quinn v. Robinson, United States Marshal for Northern District of California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-24.
    Eggleston et al. v. Commissioner of Internal Revenue.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-28.
    Norfolk Dredging Co. v. Secretary of Labor.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-38.
    Neal v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-41.
    LaChance et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-42.
    G. D. Searle & Co. v. Cohn et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-47.
    Uniglass Industries, a Division of United Merchants & Manufacturers, Inc. v. National Labor Relations Board.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-50.
    Janklow v. Newsweek, Inc.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-74.
    Gulf Oil Corp. v. Danos & Curole Marine Contractors, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-91.
    Jersawitz v. Noonan, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-93.
    Menoken v. Department of Health and Human Services.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-102.
    Singer v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-105.
    Foster v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-148.
    Benzvi et al. v. Commissioner of Internal Revenue.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-166.
    Sylvia v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-167.
    American Cast Iron Pipe Co. v. Cox et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-186.
    Day & Zimmerman, Inc. v. International Chemical Workers Union et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-210.
    Spector et al. v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-215.
    J. A. Laporte, Inc. v. Norfolk Dredging Co.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-220.
    Waldron et al. v. Collins.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-221.
    Township of Clay v. Seaway Drive-In, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-229.
    Brooks v. Ebony Oil Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-230.
    Nicholson et al. v. King.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 86-232.
    Behrend et al. v. Ziegler et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-233.
    City of Lawton, Oklahoma, et al. v. Lusby et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 86-237.
    Koehnke v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 86-245.
    Humboldt Bay Municipal Water District v. Louisiana-Pacific Corp. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-247.
    General Signal Corp. v. Allied Tube & Conduit Corp.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-249.
    Atraqchi et al. v. Four Unknown Agents of the Federal Bureau of Investigation et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-255.
    Kuzmiak v. Kuzmiak.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 86-269.
    White v. Office of Personnel Management et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 86-273.
    Texas v. Daniels, aka Austin.
   Ct. Crim.

App. Tex. Certiorari denied.


text:
    No. 86-274.
    Sarkisian et al. v. Travelers Indemnity Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-292.
    Donley v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-297.
    Russell v. Texas.
   Ct. App. Tex., 4th Sup.

Jud. Dist. Certiorari denied.


text:
    No. 86-299.
    Hutchison v. Thomas et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-301.
    Liedtke v. Bujold et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-305.
    Reynolds v. Ingalls Shipbuilding Division, Litton Systems, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-309.
    Walker et al. v. Huron Valley Hospital, Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-317.
    Rosene v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-324.
    Amador v. Department of Transportation, Federal Aviation Administration.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-333.
    Barber et al. v. American Airlines, Inc.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-346.
    Kaufman v. Berkman, Ruslander, Pohl, Lieber & Engel et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-383.
    Pacifico Creative Service, Inc., dba Jalpak, et al. v. Hennegan et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-398.
    Gebrayel v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-413.
    Sikes et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-429.
    Bloch v. Mountain Mission School, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-432.
    Miller v. Merit Systems Protection Board.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-5009.
    Spence v. Toole.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-5068.
    Davis v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-5094.
    Carter v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5281.
    Burks v. Alabama.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 86-5283.
    Bennett v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-5285.
    Hemphill v. Ohio.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5294.
    Clanton v. Dutton, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5295.
    Ryder v. Jessup & Beecher et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 86-5298.
    Jimenez v. Texas Department of Corrections et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-5301.
    Collier v. Newsome, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-5302.
    Holmes v. Taylor et al.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 86-5303.
    Brent v. Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-5304.
    Watkins v. Ohio.
   Ct. App. Ohio, Montgomery County. Certiorari denied.


text:
    No. 86-5305.
    Walter v. Torres.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-5308.
    Rogers v. Redman, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5311.
    Cisneros v. Colorado.
   Ct. App. Colo. Certiorari denied.


text:
    No. 86-5316.
    Vesay v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5317.
    Thomsen v. Levine, Commissioner, Department of Human Services.
   Ct. App. Minn. Certiorari denied.


text:
    No. 86-5318.
    Rodman v. McMackin et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5319.
    Gibson v. Kivett et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-5323.
    Dillard v. Idaho.
   Ct. App. Idaho. Certiorari denied.


text:
    No. 86-5326.
    McClure v. McCotter, Director, Texas Department of Corrections.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 86-5330.
    Otworth v. Southern Pacific Transportation Co.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5333.
    Pratt v. Ignacio.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5334.
    Roberts v. United States.
   C. A. 9th Cir.

Certiorari denied.


text:
    No. 86-5338.
    Lacy v. Gardino, Superintendent, Northeastern Correctional Center, Concord.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-5340.
    Patton v. Thieret, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-5346.
    Miesbauer v. Kansas.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 86-5347.
    Kay v. City of Oakland, California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5348.
    Anderson v. Vantage Press, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5350.
    Wandle v. Oregon.
   Ct. App. Ore. Certiorari denied.


text:
    No. 86-5352.
    Weber v. Willard et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5354.
    Geurin v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-5355.
    Russell v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 86-5359.
    Dedic v. Illinois Human Rights Commission et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 86-5383.
    Boitz v. Arco Alaska Inc. et al.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 86-5384.
    Bonin v. T. L. James & Co., Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-5385.
    Williams v. Alabama Department of Pensions and Security et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-5398.
    Voss v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-5399.
    Bauer v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5400.
    Zwick v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5402.
    Benson v. Immigration and Naturalization Service.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-5406.
    Weber v. Hoague et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-5416.
    Torres v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-5417.
    Jenkins v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5423.
    White v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5427.
    Mak v. United States.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 86-5429.
    Kelly v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-5441.
    Cook v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 86-5461.
    Fessler v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-5462.
    Boschetti v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-5506.
    Williams v. Leeke, Commissioner, South Carolina Department of Corrections, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-1731.
    Automobile Club of Michigan et al. v. Roberts et al.
   Ct. App. Mich. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 85-7230.
    Ferrer-Mazorra et al. v. Meese, Attorney General of the United States.
   C. A. 11th Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 85-1915.
    Construction Laborers Pension Trust for Southern California v. Ponce et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 85-2031.
    United States v. Schwartz et al.
   C. A. 9th Cir. Motion of respondent Raymond F. Lane for leave to proceed informa pauperis granted. Certiorari denied.

The Chief Justice took no part in the consideration or decision of this motion and this petition.


text:
    No. 85-2071.
    Oklahoma v. Post.
   Ct. Crim. App. Okla. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 86-315.
    Ricketts, Director, Arizona Department of Corrections, et al. v. Greenawalt.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 85-2133.
    No. 86-134.
    Crounse Corp. et al. v. Interstate Commerce Commission et al.; and Simmons v. Interstate Commerce Commission et al.
   C. A. 6th Cir. Certiorari denied.

Justice Scalia took no part in the consideration or decision of these petitions.


text:
    No. 86-5269.
    Cadavid v. United States.
   C. A. D. C. Cir. Certiorari denied.

Justice Scalia took no part in the consideration or decision of this petition.


text:
    No. 85-2168.
    Fleming v. Moore.
   Sup. Ct. Va. Motions of Philadelphia Inquirer et al. and National Association for the Advancement of Colored People for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 85-6753.
    No. 85-7122.
    No. 86-5021.
    No. 86-5327.
    Compton v. New Mexico. Kennedy v. Wainwright, Secretary, Florida Department of Corrections, et al. Bowers v. Maryland. Gilreath v. Kemp, Warden.
   Sup. Ct. N. M.;

Sup. Ct. Fla.;

Ct. App. Md.; and

Sup. Ct. Ga. Certiorari denied. Reported below: No. 85-6753, 104 N. M. 683, 726 P. 2d 837; No. 85-7122, 483 So. 2d 424; No. 86-5021, 306 Md. 120, 507 A. 2d 1072.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


author: Justice Brennan, Justice Marshall,

text:
    No. 85-6889.
    Dufour v. Mississippi.
   Sup. Ct. Miss. Cer-tiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Mississippi insofar as it left undisturbed the death sentence imposed' in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I nevertheless would grant certiorari because this petition presents an important issue concerning the application of this Court’s decision in Strickland v. Washington, 466 U. S. 668 (1984).

I

Petitioner Donald Dufour was convicted of capital murder occurring in the course of a robbery. His appointed counsel presented no evidence in mitigation of sentence at the penalty phase of his trial. The jury found that the State had established two aggravating circumstances and recommended a sentence of death. The State Supreme Court affirmed petitioner’s conviction and death sentence. Dufour v. State, 453 So. 2d 337 (1984). This Court denied certiorari. Dufour v. Mississippi, 469 U. S. 1230 (1985). Petitioner then instituted a postconviction proceeding to vacate judgment and sentence in the state trial court, contending that he had received ineffective assistance of counsel in that his appointed trial counsel had failed to request appointment of a psychiatrist to assist the defense in developing psychological evidence to be submitted to the jury in mitigation of sentence. The trial court summarily denied this and petitioner’s other claims, and the State Supreme Court affirmed. 483 So. 2d 307 (1986).

It appears that in his postconviction application, petitioner again requested appointment of a psychiatrist to assist counsel in showing that petitioner’s defense at the penalty phase of his trial was prejudiced by the absence of psychological evidence. He submitted the affidavit of Dr. Stanley, the court-appointed psychiatrist who had previously examined him for the purpose of determining his competency to stand trial. Dr. Stanley stated that the limited examination he had conducted for purposes of determining competency bore no relation to the more extensive and qualitatively different investigation required to present useful assistance to trial counsel on the subject of mitigation. Pet. for Cert. 7. Both the trial court and State Supreme Court denied relief without ruling on petitioner’s renewed request for the appointment of a psychiatrist; no evidentiary hearing was held on petitioner’s claim of ineffective assistance. The State Supreme Court affirmed the denial of relief, stating:

“Petitioner claims that defense counsel failed to make application to the trial court for funds to conduct a psychological evaluation of petitioner for the purpose of determining whether mitigating circumstances existed. Further, that he had no expert assistance because counsel did not request it. However, petitioner was examined pursuant to a court order. The professionals were not people selected by the State, but by the trial court. Petitioner has failed to present facts which show there existed mitigating circumstances of a psychological nature, which could have been presented by Dr. Stanley. It is not shown that such an examination would have produced the claimed results, nor has prejudice been shown.” 483 So. 2d, at 308.

II

In Strickland, supra, this Court established a two-part standard for evaluating claims of ineffective assistance of counsel. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at 687. For the reasons I then stated in dissent, I continue to believe that “a showing that the performance of a defendant’s lawyer departed from constitutionally prescribed standards requires a new trial regardless of whether the defendant suffered demonstrable prejudice thereby.” Id., at 712. The present case provides a graphic demonstration of the untenable nature of the prejudice standard announced in Strickland.

The State Supreme Court, in affirming the denial of post-conviction relief on this claim, relied entirely upon the prejudice portion of the Strickland standard. 483 So. 2d, at 308. Petitioner’s claim was denied because he did not proffer the psychiatric evidence which he contended should have been introduced at trial. He did not do so precisely because, as an indigent, he could not afford to retain a psychiatrist to make an examination either in preparation for trial or upon his application for postconviction relief. In short, the prejudice standard in such a circumstance is insurmountable; prejudice cannot be shown because the alleged error of counsel was in failing to seek the appointment of an expert without whose assistance the evidence which would show prejudice cannot be brought to light. On a claim of this kind petitioner cannot submit affidavits of witnesses who were not investigated or who were not called, or in some other manner raise an inference as to prejudice. The essence of psychiatric evidence rests in the expert qualifications of the objective examiner; if the examiner will not volunteer his services, petitioner must content himself with only so much justice as he can pay for.

In Ake v. Oklahoma, 470 U. S. 68, 80 (1985), this Court recognized that under some circumstances “the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense,” and that in these conditions the accused is entitled to the appointment of psychiatric assistance at public expense. That the failure to seek such appointment to assist counsel in the development of evidence in mitigation of sentence may in some cases rise to the level of constitutionally ineffective assistance I do not doubt. “[CJounsel’s general duty to investigate . . . takes on supreme importance to a defendant in the context of developing mitigating evidence to present to a judge or jury considering the sentence of death; claims of ineffective assistance in the performance of that duty should therefore be considered with commensurate care.” Strickland, 466 U. S., at 706 (Brennan, J., concurring in part and dissenting in part). The prejudice prong of Strickland, as it was applied below, will have the effect of depriving all such defendants of their constitutional rights solely as a result of their indigence. Because I believe that such application of the Strickland standard is incompatible with the requirements of the Constitution, I would grant the petition for certiorari.

       I would not reach the question whether counsel’s failure in this case to move for the appointment of a psychiatrist was constitutionally deficient representation under the first part of the test established by Strickland v. Washington, 466 U. S. 668 (1984). The correctness of the State Supreme Court’s determination on the question of prejudice is the sole issue posed by the petition.

       I note that petitioner’s trial counsel failed to present any evidence at all in mitigation of sentence. As I have previously stated, I believe that in all but the most extraordinary cases, such failure is, without more, a denial of effective assistance of counsel. See Berry v. King, 476 U. S. 1164 (1986) (Marshall, J., dissenting from denial of certiorari).


text:
    No. 85-6964.
    Bundy v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice Marshall,

dissenting.

Petitioner was convicted of first-degree murder and .sentenced to death. His conviction was based on evidence the Florida Supreme Court found constitutionally suspect. The Florida Supreme Court nonetheless concluded that admission of the evidence was harmless constitutional error. I would grant certiorari to review the Florida Supreme Court’s application of Schneble v. Florida, 405 U. S. 427 (1972), and Fahy v. Connecticut, 375 U. S. 85 (1963).

I

Petitioner became a suspect in the disappearance of Kimberly Leach after local authorities learned that he was suspected in a number of murders in the northwestern United States. Leach was reported missing from school on February 9, 1978, and her body was found two months later, after a highly publicized search. The only eyewitness to the abduction was Clarence Anderson. He came forward on July 18, after seeing petitioner on a television newscast. At that time, Anderson was unable to identify the date of his observation, although he thought it was “around April,” and he could not provide a detailed description of the man or the girl he had observed. App. to Pet. for Cert. A17-A21. At the request of the Assistant State Attorney, Anderson underwent two hypnotic sessions designed to refresh his recollection.

Petitioner moved to suppress Anderson’s testimony due to the lapse of time between Leach’s disappearance and his initial statement, the massive publicity surrounding her disappearance and petitioner’s arrest and indictment, and an alleged misuse of hypnosis by the persons conducting the sessions. He maintained that these factors rendered Anderson’s identification unreliable under the rule established by this Court’s decision in Neil v. Biggers, 409 U. S. 188 (1972). At the suppression hearing, several experts testified that a witness whose recollection has been hypnotically refreshed is unable to distinguish between what he recollected before hypnosis and any “details” added during hypnosis.

The trial court denied petitioner’s motion to suppress. At trial, Anderson testified that he had observed a man leading a young girl into a white van near Leach’s junior high school on February 9, 1978. He identified the man as petitioner and the girl as Kimberly Leach. Anderson’s testimony was vital to the State’s case; it supplied “the crucial link in the chain of circumstantial evidence of [petitioner’s] guilt.” 471 So. 2d 9, 23 (Fla. 1985) (Boyd, C. J., concurring specially).

On appeal, the Florida Supreme Court agreed with petitioner’s arguments against the use of hypnotically refreshed testimony. Id., at 18. The court noted that the highest courts of several other States have categorically excluded hypnotically refreshed testimony. E. g., People v. Shirley, 31 Cal. 3d 18, 641 P. 2d 775, cert. denied, 458 U. S. 1125 (1982); People v. Gonzales, 415 Mich. 615, 329 N. W. 2d 743 (1982). The court discussed several of the problems associated with such testimony, not the least of which is its effect on the defendant’s right under the Confrontation Clause of the Sixth Amendment to cross-examine witnesses against him. The Florida court noted the “‘danger of distortion, delusion, or fantasy,’” as well as “‘the barriers which hypnosis raises to effective cross-examination.’” 471 So. 2d, at 18 (quoting People v. Gonzales, supra, at 627, 329 N. W. 2d, at 748). Furthermore, the court recognized the danger that, after undergoing hypnosis,

“the subject (1) will lose his critical judgment and begin to credit ‘memories’ that were formerly viewed as unreliable, (2) will confuse actual recall with confabulation and will be unable to distinguish between the two, and (3) will exhibit an unwarranted confidence in the validity of his ensuing recollection.” 471 So. 2d, at 17 (quoting People v. Shirley, supra, at 39, 641 P. 2d, at 787).

The Florida Supreme Court concluded, in a holding to which it gave only prospective effect, that “hypnotically refreshed testimony is per se inadmissible in a criminal trial in this state, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis.” 471 So. 2d, at 18.

II

Since petitioner was convicted and sentenced to death after a trial in which the “crucial link” was supplied by a witness with extremely limited prehypnotic memory who had undergone two hypnotic sessions, the Florida Supreme Court should have overturned his conviction. Instead, the court somehow determined that Anderson’s testimony was refreshed under hypnosis as to only three details: the color of the football jersey the girl was wearing, the numbers on the jersey, and the fact that the man was wearing a pullover sweater and a shirt. Then, purporting to apply the “harmless-constitutional-error rule” of Schneble v. Florida, 405 U. S. 427 (1972), and Fahy v. Connecticut, 375 U. S. 85 (1963), the court concluded: “[Sjufficient evidence does exist, absent the tainted testimony, upon which the jury could have based its conviction of Bundy: There is no reasonable possibility that the tainted testimony complained of might have contributed to the conviction.” 471 So. 2d, at 19.

This review for harmless constitutional error is seriously flawed. First, the Florida court improperly based its enumeration of tainted testimony on Anderson’s own testimony at trial. App. to Pet. for Cert. A86-A87. Anderson’s own assessment of the impact of hypnosis on his recollection was inherently unreliable and was not subject to effective cross-examination, for the very reasons the court relied upon in holding that such evidence would in the future be inadmissible. The hypnotically refreshed “recollection” of the precise date of his observation is the most glaring omission from Anderson’s list. Having identified constitutional error in the admission of hypnotically refreshed testimony, the Florida Supreme Court was not free to excise a fraction of that evidence and conclude that the rest could not have contributed to the conviction. Second, the Florida court evidently confused review for harmless constitutional error with review for sufficiency of the evidence, despite this Court’s explanation of the difference in Fahy: “We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” 375 U. S., at 86-87. Cf. Delaware v. Van Arsdall, 475 U. S. 673, 684 (1986); Chapman v. California, 386 U. S. 18, 23 (1967). When the evidence admitted at petitioner’s trial is reviewed in this light it becomes clear that the tainted testimony significantly bolstered the State’s case against him, for the untainted evidence was far from overwhelming.

‘We must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence . . . though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one.” Id., at 22. Because the Florida Supreme Court misapplied the harmless-constitutional-error rule in such a way as to place in doubt the reliability of a verdict in a capital case, I would grant the petition for certiorari.

       Since the Florida Supreme Court found constitutional error and the State has not cross-petitioned for certiorari on that question, this Court is not called upon to decide whether admission of hypnotically refreshed testimony in a criminal trial violates the Due Process Clause of the Fourteenth Amendment or the Confrontation Clause of the Sixth Amendment. Accordingly, I express no view on this question.

       One of petitioner’s experts testified at the pretrial suppression hearing that Anderson’s testimony was “enhanced” by numerous details in addition to the date of the occurrence and the three items listed by Anderson. These enhancements included what Anderson was doing on that day, the man’s weight, the fact that he was clean shaven, the description of the van, and the fact that he could see the man and the girl through its rear window. Pet. for Cert. 12. The court below evidently ignored this portion of the record in reaching its conclusion as to harmless error.


text:
    No. 85-6977.
    Porter v. Illinois.
   Sup. Ct. Ill. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

I would grant this petition for certiorari to consider the extent of the obligations our decision in Smith v. Phillips, 455 U. S. 209 (1982), imposes on a trial judge confronted with a claim of juror bias.

I

Petitioner Anthony Porter was convicted of two murders committed in the course of an armed robbery and was sentenced to death. During voir dire, the trial judge read a list of potential witnesses, including the mother of Marilyn Green, one of the victims. He did not ask whether any of the prospective jurors knew any of the persons on the list, and none of them volunteered that they did. After the jury returned a guilty verdict, petitioner waived his right to a jury at the penalty proceeding. Before the judge dismissed the jurors, however, he addressed them as follows:

“THE COURT: ... It was brought to my attention before I actually formally dismissed you that one of the jurors stated that he knew that some other juror purportedly or allegedly went to church — to the same church as one of the decedent’s mother. Is that right, was that you — please identify yourself.
“MRS. TRICKLET Yes, but that didn’t make any difference to me about that.
“THE COURT: Thank you, ma’am. It didn’t make any difference?
“MRS. TRICKLET: No.
“THE COURT: Ma’am, your name again?
“MRS. TRICKLET: Lilly B. Tricklet.
“THE COURT: It didn’t make any difference to you, you abided by your oath and did you recognize the fact when I had read you the name of all the witnesses in the beginning before we even started, you didn’t recognize that?
“MRS. TRICKLET: No.
“THE COURT: When did you finally recognize—
“MRS. TRICKLET: After it had got started and everything was going on.
“THE COURT: But, it made no difference to you, is that right?
“MRS. TRICKLET: No, that is right.
“THE COURT: I will now formally dismiss you. You are all dismissed.” 111 Ill. 2d 386, 397-398, 489 N. E. 2d 1329, 1333 (1986).

Defense counsel was not permitted to question Mrs. Trigleth. After he suggested that “the Court should have questioned this juror in detail as to her relationship to that family,” id., at 398, 489 N. E. 2d, at 1334, the judge made the following statement:

“This Court will state for the record that in an unusual proceeding, I think probably the most unusual I have ever engaged in in all my years as a lawyer and as a Judge, I did bring back the entire jury and I had not dismissed them and the lady that identified herself was under oath and said for the record that the facts that came to light after the case, sometime after the case had commenced, in earnest, didn’t influence her whatsoever.
“Accordingly, this Court felt that going beyond that regarding that issue is not— would not have been proper, would have invaded the sanctity of the jury and jury deliberation. Mr. Porter talked to and did, in fact request and have his constitutional right to a jury. That lady was under oath. She was not on trial, Mr. Porter was.” Id., at 413-414, 489 N. E. 2d, at 1341 (emphasis supplied).

Petitioner moved for a new trial. He submitted the affidavit of Isaías Torres, the juror who had brought the matter to the court’s attention. In his affidavit, Torres stated that “a fellow juror informed him that another juror sitting in judgment of the facts with them . . . knew the deceased, Marilyn Green’s mother and attended church with her.” Id., at 402, 489 N. E. 2d, at 1335. He further stated that “this same Black female juror, when the jury was given the case to deliberate on, entered the jury room and said as far as she was concerned, they could vote guilty right then, and she made this statement before any discussion was had on the evidence . . . .” Ibid, (emphasis supplied). At the hearing on petitioner’s motion for a new trial, which was held before the same judge, Mrs. Trigleth was not called as a witness. After a brief oral argument, the judge denied the motion.

The Illinois Supreme Court affirmed the trial court’s denial of petitioner’s motion for a new trial, with three justices dissenting. Although the State Supreme Court recognized that the trial court’s inquiry “could have, and possibly should have, been more searching,” it considered the ruling to be within the trial judge’s “sound discretion.” Id., at 403, 489 N. E. 2d, at 1336. The State Supreme Court concluded: “The burden in this case was on the defendant to support the allegations of his post-trial motion. ... Not only should the defendant have shown the nature of the relationship between the juror and the victim’s mother, but he also had the burden of showing that he was prejudiced by this juror’s service.” Id., at 404, 489 N. E. 2d, at 1336.

II

The right to a trial by an impartial jury lies at the heart of due process. See, e. g., Irvin v. Dowd, 366 U. S. 717, 721-722 (1961). This Court has held that due process requires both “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U. S., at 217. When a substantial question of juror bias is presented to the trial court, as it was in this case, we have held that the defendant is entitled to a hearing “ ‘with all interested parties permitted to participate.’” Id., at 216 (quoting Remmer v. United States, 347 U. S. 227, 230 (1954)).

Under Smith v. Phillips, supra, the trial judge’s inquiry into juror bias in this case fell far short of the minimum required by the Due Process Clause of the Fourteenth Amendment. The judge merely called on the juror to identify herself and then asked her “several times in a leading fashion to reaffirm that her acquaintance with the mother did not influence her” in a colloquy that “could have lasted only seconds.” 111 Ill. 2d, at 410, 489 N. E. 2d, at 1339 (Simon, J., dissenting). The trial judge failed to ascertain to any meaningful degree the extent and nature of her relationship with the victim’s mother and the point at which she became aware that she was acquainted with the mother. The juror’s vague statement that she realized it “[ajfter it had got started and everything was going on” suggests only that she was not aware of it at voir dire. She was never asked to explain why she had not brought the matter to the court’s attention when she realized the connection; had she done so, one of the alternate jurors could have taken her place. Moreover, the trial court did not allow defense counsel to question her.

The State contends that petitioner had an opportunity to explore the issue of bias at the post-trial hearing on his motion for a new trial. That hearing, however, was woefully inadequate when measured by our decisions in Phillips and Remrner. At a minimum, due process requires that the defendant be allowed to question the juror on the issue of bias. See Smith v. Phillips, 455 U. S., at 217, n. 7 (“[D]eterminations made in Remmer-type hearings will frequently turn upon testimony of the juror in question”); see also id., at 222 (O’Connor, J., concurring). The Illinois Supreme Court criticized defense counsel for failing to call Mrs. Trigleth or obtain an affidavit from her, 111 Ill. 2d, at 403, 489 N. E. 2d, at 1336. However, in light of the trial judge’s insistence on the sanctity of the jury’s deliberation and his refusal to allow defense counsel to question Mrs. Trigleth while she was under oath, counsel reasonably considered himself foreclosed from contacting her in connection with his motion for a new trial before the same judge. Thus, while petitioner had the burden of showing both bias and actual prejudice, the trial judge’s admonitions appeared to deprive him of the only means of doing so.

I continue to believe that the defendant should not bear the burden of showing actual prejudice when the probability of bias is substantial, as it is in this case, see Smith v. Phillips, supra, at 224 (Marshall, J., dissenting). However, petitioner never even had the opportunity of demonstrating prejudice due to juror bias. This violated his right to due process and leaves in doubt the impartiality of the jury that convicted him in this capital case. Accordingly, I dissent from denial of the petition for certiorari.

      *The trial transcript incorrectly lists the juror’s name as Tricklet, rather than Trigleth.


text:
    No. 85-7071.
    Buttrum v. Black, Warden.
   Sup. Ct. Ga. Certiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice Marshall,

dissenting.

Petitioner was convicted of murder and sentenced to death. Her conviction and sentence were affirmed on direct appeal, and this Court denied certiorari. Buttrum v. State, 249 Ga. 652, 293 S. E. 2d 334 (1982), cert. denied, 459 U. S. 1156 (1983). The present petition seeks review of a subsequent denial of state habeas corpus relief in state court. Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Georgia insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I nevertheless would, at the very least, delay the disposition of this petition until California v. Brown, No. 85-1563, is decided.

In closing argument at the sentencing phase of petitioner’s trial, the prosecutor incorporated statements from an 1873 decision of the Georgia Supreme Court that appear with some regularity in contemporary capital sentencing proceedings in that State. See Eberhart v. State, 47 Ga. 598, 609-610; Ruffin v. State, 243 Ga. 95, 105, 252 S. E. 2d 472, 479-480 (1979). The effect of these statements was to lead the jury to believe that mercy was not a permissible component of their sentencing determination:

“You took an oath at the beginning of the case. You said, T do’, to ‘You shall well and truly try the issue formed upon this Bill of Indictment . . . and a true verdict give according to evidence. So Help You God.’ ‘According to evidence’; not according to mercy, not according to sympathy, not according to feeling sorry for a Defendant. . . . Mercy? I submit to you that we should have no sympathy with that sentiment that springs into action whenever a criminal is about to suffer for a crime. Society demands that the crime be punished and criminals warned. The false humanity that starts and shudders when the axe of justice is about to fall is a dangerous element for the peace of society. We have had too much of this mercy. It is not true mercy. It only looks to the criminal. ... A stern, unbending, unflinching administration of justice is the surest way to prevent the commission of other heinous and horrible acts like the one committed by that Defendant. We are a society of Laws, not of sentiment.” App. to Pet. for Cert. A-4, pp. 17-18.

On more than one occasion, the Georgia Supreme Court has condemned use of the statements employed by the prosecutor in petitioner’s sentencing hearing — at least where they are attributed to a justice of that court — though it'has generally found their effect insufficiently prejudicial to warrant reversal of the death sentences imposed. See, e. g., Ruffin, supra, at 105, 252 S. E. 2d, at 479-480; Hawes v. State, 240 Ga. 327, 335-336, 240 S. E. 2d 833, 840 (1977). The Court of Appeals for the Eleventh Circuit has rejected use of this same language, regardless of the spokesman, because its content does not relate to the particular circumstances of the defendant whose sentence is being determined, but rather implies that considerations of mercy can have no part in jury deliberations in capital sentencing proceedings. See, e. g., Wilson v. Kemp, 777 F. 2d 621, 626-628 (1985), cert. denied, 476 U. S. 1153 (1986); Drake v. Kemp, 762 F. 2d 1449, 1458-1461 (1985), cert. denied, 478 U. S. 1020 (1986). These divergent opinions from the Eleventh Circuit and the Georgia Supreme Court raise serious questions as to the constitutionally permissible scope of prosecutorial comment on the role of mercy in the jury’s sentencing decision. Because we granted certiorari in California v. Brown, supra, to decide a closely related issue, I dissent from the present denial of this petition.


text:
    No. 85-7087.
    Boliek v. Missouri.
   Sup. Ct. Mo. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Missouri insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I nevertheless would grant certiorari because this petition presents an important issue concerning the application of the Confrontation Clause of the Sixth Amendment.

Petitioner William Theodore Boliek, Jr., was charged with the murder of Jody Harless. The State alleged that Boliek shot Harless twice, once in the stomach and once in the head, in order to prevent her from testifying about a robbery in which she had been an accomplice. Boliek admitted that he had fired the first, nonfatal shot, which he claimed was an accident; he contended that the second and fatal shot had been fired by Vernon Wait, another of the participants in the robbery. At petitioner’s trial the State produced two witnesses to whom Jody Harless had said, in the days immediately preceding her death, that she was afraid petitioner was going to kill her. In his summation, the prosecutor told the jury: “ ‘Jody Harless, one of her last words was “Ted Boliek’s gonna blow my head off.” And he did it.’” Pet. for Cert. 5.

The Missouri Supreme Court rejected petitioner’s contention that it was reversible error to admit this evidence. State v. Boliek, 706 S. W. 2d 847 (1986). The Court held the evidence admissible under the hearsay exception for statements of the declar-ant’s present mental condition. Id., at 850. One judge dissented from this holding, taking the position that the statements were not admissible because the victim’s state of mind was not material to the State’s case. Petitioner contends that the admission of this hearsay violated his rights under the Confrontation Clause.

In Ohio v. Roberts, 448 U. S. 56 (1980), this Court held that the statement of an unavailable declarant “is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id., at 66. The State contends that the challenged evidence met this standard because the statements were admitted under a recognized hearsay exception. Missouri has not codified its law of evidence, and while it has been said that “[ujnder Missouri law the declarations of the decedent in a homicide case are admissible to prove the decedent’s state of mind where that is relevant,” Lenza v. Wyrick, 665 P. 2d 804, 810 (CA8 1981), the Missouri courts have recognized: “[Declarations revealing a state of mind often contain recitals of circumstantial facts. They are not admissible to prove the truth of such recitals.” State v. Singh, 586 S. W. 2d 410, 418 (Mo. App. 1979).

There can be no doubt, given the use made of the evidence by the State in summation, that the testimony as to the victim’s statements was admitted to prove not her state of mind, but the truth of her belief that petitioner intended to kill her. Cf. Fed. Rule Evid. 803(3) (statements of memory and belief not admissible “to prove the fact remembered or believed”). It is precisely to avoid the possibility of such use of “state of mind” evidence that at least eight States and one Federal Court of Appeals have precluded or sharply limited the introduction of evidence of the victim’s state of mind in homicide cases. Under these circumstances, I do not believe that the evidence in this case was admitted under a “firmly rooted” hearsay exception. See Ohio v. Roberts, supra, at 66. I do not take Ohio v. Roberts to mean that any hearsay evidence which can be squeezed under the rubric of a state hearsay exception has met the reliability standard required by the Sixth Amendment. See Dutton v. Evans, 400 U. S. 74, 105 (1970) (Marshall, J., dissenting). When evidence nominally received under a particular hearsay exception is presented for purposes other than those the exception was designed to serve, the constitutional analysis should not end with the mere semantic invocation of the rule. The challenged evidence in this case was not accompanied by any independent indicia of reliability. As the dissent below rightly pointed out, it was completely immaterial to the jury’s consideration of petitioner’s defense of accident. The only function served by the evidence, and one which the prosecutor specifically emphasized in summation, was to raise an impermissible inference for the jury as to premeditation and intent on petitioner’s- part. Because I believe that the receipt of this evidence under these circumstances creates a serious Confrontation Clause issue, I would grant the petition for certiorari.

      See, e. g., People v. Huber, 131 Ill. App. 3d 163, 475 N. E. 2d 599 (1985); Commonwealth v. Bond, 17 Mass. App. 396, 458 N. E. 2d 1198 (1984); People v. Madson, 638 P. 2d 18 (Colo. 1981); Kennedy v. State, 385 So. 2d 1020 (Fla. App. 1980); State v. Wauneka, 560 P. 2d 1377 (Utah 1977); State v. Goodrich, 97 Idaho 472, 546 P. 2d 1180 (1976); People v. Ireland, 70 Cal. 2d 522, 450 P. 2d 580 (1969); State v. Kump, 76 Wyo. 273, 301 P. 2d 808 (1956). See United States v. Brown, 160 U. S. App. D. C. 190, 490 F. 2d 758 (1974).


text:
    No. 85-7189.
    Wiley v. Mississippi.
   Sup. Ct. Miss. Certio-rari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner was sentenced to death by a jury whose sentencing determination was biased impermissibly in favor of death. Because I believe that, under this Court’s decisions in Godfrey v. Georgia, 446 U. S. 420 (1980), and Zant v. Stephens, 462 U. S. 862 (1983), the fact that a murder was committed during the course of a robbery cannot serve both as an element of the capital offense and as the factual predicate for two statutory aggravating circumstances, I would grant certiorari in this case.

Petitioner William Wiley was convicted of a murder committed during a robbery and was sentenced to death. The Mississippi Supreme Court affirmed the jury’s determination of guilt, but remanded for resentencing due to the prosecutor’s improper references to appellate review. Wiley v. State, 449 So. 2d 756 (1984). At the second sentencing proceeding, petitioner once again received a sentence of death. The jury found three statutory aggravating circumstances and insufficient mitigating circumstances to outweigh the aggravating circumstances. The Mississippi Supreme Court affirmed petitioner’s conviction and death sentence, with three justices concurring in the judgment. 484 So. 2d 339 (1986).

Under Mississippi law, all murder is not capital murder. The death sentence may be imposed only where the murder falls into one of seven narrowly defined classes. Miss. Code Ann. §§ 97-3-19(2)(a)-(g) (Supp. 1985). Petitioner was convicted under a section of the statute that classifies murder committed by a person engaged in a robbery as capital murder. § 97-3-19(2)(e). Once the jury found him guilty of the capital offense, it then had to find at least one aggravating circumstance, in order to impose the death penalty. See §§ 99-19-101(5)(a)-(h) (Supp. 1985) (listing aggravating circumstances). In this case, the jury found three statutory aggravating circumstances: “[t]he capital offense was committed while the defendant was engaged ... in the commission of, or an attempt to commit, any robbery,” “[t]he capital offense was committed for pecuniary gain,” and “[t]he capital offense was especially heinous, atrocious or cruel.” §§ 99-19-101(5)(d), (e), and (h). Two of these circumstances — that the offense was committed while petitioner was engaged in a robbery, and that it was committed for pecuniary gain — would automatically be present in any killing that took place during a robbery.

“Our cases indicate . . . that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty.” Zant v. Stephens, supra, at 878. Aggravating circumstances provide a “‘meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not,’” Gregg v. Georgia, 428 U. S. 153, 188 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 313 (1972) (White, J., concurring)). In Godfrey v. Georgia, supra, this Court struck down an aggravating circumstance so vaguely worded that it failed to perform this narrowing function. In Woodson v. North Carolina, 428 U. S. 280 (1976), we also rejected mandatory death sentences for specified offenses as constitutionally unacceptable, stating: “‘[Jjustice generally requires consideration of more than the particular acts by which the crime was committed . . . .’ [W]e believe 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.” Id., at 304 (plurality opinion) (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937)).

Under Mississippi’s sentencing scheme, as applied in this case, all persons convicted of robbery-murder enter the sentencing phase with two built-in aggravating circumstances, creating a strong presumption in favor of death. In cases where no mitigating or additional aggravating evidence is introduced, these aggravating circumstances have not narrowed the class of death-eligible persons at all. See Roberts v. Louisiana, 428 U. S. 325 (1976) (plurality opinion) (mandatory death sentences even for narrowly defined category of murders held unconstitutional). I believe that the use of aggravating factors which repeat an element of the underlying capital offense creates a substantial risk that death will be inflicted in an arbitrary and capricious manner.

Not only do two of the three aggravating circumstances found by the jury repeat elements of the underlying capital offense, they both rest on the same underlying facts. The Mississippi Supreme Court has not limited the aggravating circumstance of “committed for pecuniary gain” to murder for hire or any other narrow category of murders. Accordingly, any murder committed during the course of a robbery is ipso facto committed for pecuniary gain. The Mississippi Supreme Court rejected petitioner’s arguments against double counting these aggravating circumstances, over the objection of a concurring justice who stated: “[T]he fallacy of our rule is its failure to recognize that murders are aggravated by a defendant’s conduct, not by the statutory language. ... A single, legally indivisible act of the defendant may rationally aggravate a murder but once.” 484 So. 2d, at 358 (Robertson, J., concurring) (emphasis in original).

The State Supreme Court relied on the fact that the jury found, as a third aggravating factor, that the offense was “especially heinous, atrocious or cruel.” Ibid. Since it needed only one aggravating circumstance to impose death, the state court held that “failure of one repetitious aggravating circumstance does not invalidate the two remaining aggravating factors to reverse the death sentence.” Id., at 351-352. But under the Mississippi capital sentencing statute, Miss. Code Ann. §99-19-103 (Supp. 1985), the jury was instructed to balance aggravating against mitigating circumstances. While the jury might have returned a verdict of death even if there had been only one aggravating circumstance, we cannot be sure that it would have done so in view of the mitigating factors presented; the jury’s verdict merely stated that ‘“there are insufficient mitigating factors to outweigh the aggravating circumstances.’” 484 So. 2d, at 342 (emphasis supplied). Under the circumstances, I believe that the sentencer’s “consideration of . . . improper aggravating circumstance[s] so infects the balancing process created by” the Mississippi statute “that it is constitutionally impermissible ... to let the sentence stand.” Barclay v. Florida, 463 U. S. 939, 956 (1983) (plurality opinion).

A capital sentencing scheme that repeats an element of the underlying capital offense in two aggravating circumstances cannot properly perform the narrowing function envisioned in Godfrey v. Georgia, 446 U. S. 420 (1980), and Zant v. Stephens, 462 U. S. 862 (1983). Since petitioner was sentenced under a scheme that suffered from these deficiencies, I would grant the petition for certiorari.

       A grant of certiorari would enable the Court to resolve a conflict among the Circuits on this issue.
      In Gray v. Lucas, 677 F. 2d 1086, 1105 (1982), cert. denied, 461 U. S. 910 (1983), decided before Zant v. Stephens, 462 U. S. 862 (1983), the Fifth Circuit upheld this aspect of the Mississippi sentencing scheme against an equal protection challenge. See also Adams v. Wainwright, 709 F. 2d 1443, 1447 (CA11 1983) (rejecting similar challenge to Florida statute on the basis of Proffitt v. Florida, 428 U. S. 242 (1976)), cert. denied, 464 U. S. 1063 (1984). On the other hand, the Eighth Circuit invalidated Arkansas’ use of an aggravating circumstance (committed for pecuniary gain) because it repeated an element of the underlying capital offense. Collins v. Lockhart, 754 F. 2d 258, 263-264, cert. denied, 474 U. S. 1013 (1985).

       A number of state courts have invalidated double counting of aggravating circumstances. See, e. g., Cook v. State, 369 So. 2d 1251, 1256 (Ala. 1979); Provence v. State, 337 So. 2d 783, 786 (Fla. 1976); State v. Rust, 197 Neb. 528, 537, 250 N. W. 2d 867, 873, cert. denied, 434 U. S. 912 (1977); Glidewell v. State, 663 P. 2d 738, 743 (Okla. Crim. App. 1983).

       Petitioner also challenges the application of this aggravating circumstance as unconstitutionally vague under Godfrey v. Georgia, 446 U. S. 420 (1980). Petitioner’s crime was similar to that in Godfrey: the victim was shot twice from close range, without warning, and died on the scene. 484 So. 2d, at 352-354. Although Mississippi has adopted a limiting construction of this aggravating circumstance, in light of the facts of this ease, I “doubt that the trial judge’s understanding and application of this aggravating circumstance conformed to that degree of certainty required by our decision in God-frey . . . .” Eddings v. Oklahoma, 455 U. S. 104, 109, n. 4 (1982).

       The jury was instructed to consider, among other factors, petitioner’s lack of a prior criminal record. 484 So. 2d, at 350.

       In Collins v. Lockhart, supra, at 258-259, the Eighth Circuit invalidated an Arkansas death sentence after eliminating one of three aggravating circumstances found by the jury, since the jury had balanced aggravating and mitigating factors. The Court of Appeals distinguished the Arkansas sentencing statute from statutes that give the jury absolute discretion to impose death once it finds a single aggravating circumstance. But cf. Zant v. Stephens, supra, at 890.

       In addition, petitioner raises issues related to those that will be before the Court this Term in California v. Brown, No. 85-1563. I would at the very least delay disposition of this petition until that ease is decided.


text:
    No. 85-7204.
    Martin v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.

Justice Blackmun would grant the petition for writ of certiorari limited to Question 1 presented by the petition.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 86-67.
    Rath Packing Company Creditors’ Trust v. Equal Employment Opportunity Commission.
   C. A. 8th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 86-268.
    Scholes v. Allred et al.
   Ct. App. Cal., 1st App. Dist. Petition for writ of certiorari and/or prohibition denied.


text:
    No. 86-272.
    Medical Inc. v. Regents of the University of Minnesota.
   Ct. App. Minn. Certiorari denied.

Justice Blackmun took no part in the consideration or decision of this petition.


author: Justice White,

text:
    No. 86-5098.
    Jackson v. United States.
   C. A. 2d Cir. Certiorari denied.

Justice White,

dissenting.

In Chimel v. California, 395 U. S. 752 (1969), the Court held that the valid arrest of a person in a residence does not give the police an automatic right to search the remainder of the house without a warrant. Some Courts of Appeals permit a warrantless “protective sweep” of the remainder of the premises if the arresting officers reasonably believe that there are other persons on the premises who could pose a danger to the officers’ safety. See United States v. Hatcher, 680 F. 2d 438, 444 (CA6 1982); United States v. Kolodziej, 706 F. 2d 590, 596-597 (CA5 1983). Other Courts of Appeals, including the Court of Appeals for the Second Circuit in this case, permit protective sweeps if there is a likelihood that another person may be on the premises who may destroy evidence. See also United States v. Vasquez, 638 F. 2d 507 (CA2 1980), cert. denied, 454 U. S. 975 (1981). Almost all of the Courts of Appeals have struggled to define the circumstances under which such searches are permissible. See United States v. Gardner, 627 F. 2d 906, 910, n. 3 (CA9 1980).

The Court of Appeals for the Second Circuit in this ease expressly recognized that its approach, allowing a protective sweep when the police only suspect that another person on the premises may destroy evidence, conflicted with the more stringent safety-based approach adopted by other Courts of Appeals. 778 F. 2d 933, 937 (1985). In light of these differing approaches and in light of the decision in Chimel v. California, see Vasquez v. United States, 454 U. S., at 987 (Brennan, J., dissenting from denial of certiorari), certiorari should be granted to deal with this important and recurring issue of Fourth Amendment law.


text:
    No. 86-5291.
    Arabi et al. v. Pennsylvania et al.
   Sup. Ct. Pa. Certiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 71-288.
    Laird, Former Secretary of Defense, et al. v. Tatum et al.,
   408 U. S. 1 and 409 U. S. 901. Motion for leave to file second petition for rehearing denied.


text:
    October 20, 1986
    No. 85-7068.
    Barnes v. Department of Revenue, Division of Motor Vehicles.
   Appeal from Sup. Ct. Kan. dismissed for want of substantial federal question.

Justice Stevens would note probable jurisdiction and set case for oral argument.


text:
    No. 86-306.
    Green et ux. v. Department of Human Services of West Virginia.
   Appeal from Cir. Ct. W. Va., Jefferson County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. A-195.
    Mikutaitis v. United States et al.
   C. A. 7th Cir. Application for stay, presented to Justice Stevens, and by him referred to the Court, denied. The stay heretofore entered by Justice Stevens [478 U. S. 1306] is vacated.


text:
    No. A-296.
    Wainwright, Secretary, Florida Department of Corrections v. Darden.
   Application of the Attorney General of Florida for an order to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit, presented to Justice Powell, and by him referred to the Court, denied.


text:
    No. D-559.
    In re Disbarment of Burke.
    [For earlier order herein, see 478 U. S. 1018.]
   Disbarment entered.


text:
    No. D-560.
    In re Disbarment of Heyser.
    [For earlier order herein, see 478 U. S. 1018.]
   Disbarment entered.


text:
    No. D-578.
    In re Disbarment of Alker.
   It is ordered that Edward C. Alker, of Folsom, La., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-579.
    In re Disbarment of Betz.
   It is ordered that David Franklin Betz, of Ludington, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-580.
    In re Disbarment of Sisk.
   It is ordered that Mary Neal Sisk, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court.


text:
    No. 85-937.
    West Virginia v. United States.
   C. A. 4th Cir. [Certiorari granted, 475 U. S. 1009.] Motion of California for leave to file a brief as amicus curiae out of time denied.


text:
    No. 85-1129.
    Johnson v. Transportation Agency, Santa Clara County, California, et al.
   C. A. 9th Cir. [Certio-rari granted, 478 U. S. 1019.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae out of time granted.


text:
    No. 85-6790.
    Granberry v. Greer, Warden.
   C. A. 7th Cir. [Certiorari granted, ante, p. 813.] Motion for appointment of counsel granted, and it is ordered that Howard B. Eisenberg, Esquire, of Carbondale, Ill., be appointed to serve as counsel for petitioner in this case.


text:
    No. 86-5430.
    Benvenuti v. Department of Defense et al.
   C. A. Fed. Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until November 10, 1986, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 86-5550.
    In re Dixon.
   Petition for writ of habeas corpus denied.


text:
    No. 86-5451.
    In re Thaper.
   Petition for writ of mandamus denied.


text:
    No. 86-356.
    In re Tracey.
   Petition for writ of prohibition denied.


text:
    No. 86-133.
    Nollan et ux. v. California Coastal Commission.
   Appeal from Ct. App. Cal., 2d App. Dist. Probable jurisdiction noted.


text:
    No. 85-2068.
    Rankin et al. v. McPherson.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 86-270.
    San Francisco Arts & Athletics, Inc., et al. v. United States Olympic Committee et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 86-337.
    Burlington Northern Railroad Co. v. Oklahoma Tax Commission et al.
   C. A. 10th Cir. Motion of Association of American Railroads for leave to file a brief as amicus curiae granted. Certiorari granted.


text:
    No. 85-6918.
    Hooks et al. v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 85-7161.
    Bradley v. Massey, Superintendent, Union Correctional Institution, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-7169.
    Oliver v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-7183.
    Amazon v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 86-23.
    Garvin et al. v. Alumax of South Carolina, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-45.
    Eppinga v. Edgar, Secretary of State of Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 86-103.
    Arlington Hotel Co., Inc. v. National Labor Relations Board et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-113.
    American Baptist Churches in the U. S. A. et al. v. Reagan, President of the United States, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-114.
    Johnson, an Infant, by Johnson, her Mother and Natural Guardian, et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-117.
    Sachdev v. Immigration and Naturalization Service.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-120.
    Bowen, Secretary of Health and Human Services, et al. v. Ellender et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-144.
    Carson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 86-190.
    Turzai v. Pennsylvania Liquor Control Board.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 86-222.
    Batterton et al. v. Texas General Land Office et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-264.
    Alfarone et al. v. Bernie Wolff Construction Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-296.
    Balko et al. v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 86-300.
    Frost v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 86-307.
    City of Paducah et al. v. Investment Entertainment, Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-313.
    Gonzalez v. Public Health Trust, aka Jackson Memorial Hospital.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-318.
    Bailey v. Federal Intermediate Credit Bank of St. Louis.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-332.
    Mooney, dba Bethel Steel Co., et al. v. Greater New Castle Development Corp.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 86-335.
    Baumgartner, Executor of the Estate of Baumgartner v. First Church of Christ, Scientist, et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 86-338.
    Berry et al. v. Aetna Casualty & Surety Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-339.
    National Gypsum Co. et al. v. School District of Lancaster et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-343.
    Young et al. v. Seaboard System Railroad Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-348.
    Assigned Container Ship Claims, Inc. v. American President Lines, Ltd., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-349.
    Kuntz et al. v. Reese et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-355.
    Porzig et al. v. Nolden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-360.
    First Trust & Savings Bank of Kankakee et al. v. Commonwealth Edison Co.
   App. Ct. Ill, 3d Dist. Certiorari denied.


text:
    No. 86-395.
    Hronopoulos v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-402.
    Johnson v. Bowen, Secretary of Health and Human Services.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-412.
    Copley Press, Inc., et al. v. Smith.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 86-414.
    St. Cyprian’s Chapel, Inc. v. Fraternity of the Apostles of Jesus and Mary.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-418.
    Brakke et al. v. Department of Transportation et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-423.
    Porcaro v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-427.
    Butler v. Department of Agriculture.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-438.
    Roberts v. Department of Transportation, Federal Aviation Administration.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 86-455.
    Masy et al. v. New Jersey Transit Rail Operations, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-458.
    Parr et ux. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-5183.
    Shaffer v. Stewart et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-5226.
    Marks v. United States District Court for the Middle District of Alabama.
   C. A. 11th Cir. Certio-rari denied.


text:
    No. 86-5236.
    Fixel v. United States District Court for the District of Nevada et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5367.
    Aqui et al. v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 86-5371.
    Kay v. Oakland, California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5376.
    Rorrer v. Bullock, District Court Judge in Wake County, North Carolina.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 86-5380.
    Dulce v. Goldstein et ux.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-5408.
    Brennan v. Graham, Governor of Florida, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-5424.
    Parez v. Hogan et al.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 86-5435.
    Barksdale v. Thompson, Governor of Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-5450.
    Pavelski v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-5464.
    Day v. City of Los Angeles et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5468.
    Martin v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 86-5471.
    Gillis v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-5513.
    In re Lucas.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 86-5520.
    Rosenthal v. Rosenthal.
   Ct. App. Wis. Certiorari denied.


text:
    No. 85-2034.
    Kramer v. Horton et al.
   Sup. Ct. Wis. Certiorari denied.

Justice White,

dissenting.

This case presents the issue whether exhaustion of state administrative remedies is a prerequisite to bringing an action in state court under 42 U. S. C. § 1983. In this case, the Wisconsin Supreme Court held that state administrative remedies must be exhausted before bringing an action under § 1983 in Wisconsin state courts. 128 Wis. 2d 404, 383 N. W. 2d 54 (1986). For the reasons stated in my previous dissent from denial of certiorari in Caylor v. Red Bluff, 474 U. S. 1037 (1985), I would grant certiorari.


text:
    No. 85-2115.
    Whittaker Corp. v. Jenkins.
   C. A. 9th Cir. Certiorari denied.

Justice White,

with whom The Chief Justice joins,

dissenting.

The respondents in this case first moved for prejudgment interest 30 days after the entry of judgment in their favor. The District Court treated the motion as one to alter or amend the judgment, and denied it as untimely because it was not filed within 10 days of the entry of judgment. See Fed. Rule Civ. Proc. 59(e). The United States Court of Appeals for the Ninth Circuit reversed, holding that a motion for prejudgment interest made for the first time after entry of judgment is not a Rule 59(e) motion but a general motion governed by Federal Rule of Civil Procedure 7. 785 F. 2d 720, 723 (1986). This holding conflicts with Goodman v. Heublein, Inc., 682 F. 2d 44, 45-47 (CA2 1982). I would grant certiorari to resolve this conflict.