Arnold v. South Carolina; And Plath v. South Carolina

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ARNOLD v. SOUTH CAROLINA; and PLATH v. SOUTH CAROLINA

No. 83-6567

No. 83-6575

Supreme Court of the United States

May 14, 1984

467 U.S. 1265

JUSTICE WHITE, dissenting.

In

Ohio v. Roberts, 448 U.S. 56 (1980), the Court held that the introduction of hearsay statements against a criminal defendant will not violate the Confrontation Clause if two requirements are satisfied. First, the prosecution must ordinarily demonstrate the unavailability of the declarant; second, the statements must bear sufficient “indicia of reliability.”

Id., at 65-66. The Court noted that “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”

Id., at 66. The question presented in this case is whether statements that satisfy Federal Rule of Evidence 801(d)(2)(E), which provides for the admissibility of statements of co-conspirators, necessarily satisfy the requirements of the Confrontation Clause.

The Circuits are divided on the question whether co-conspirator statements fall within the “firmly rooted hearsay exception” language of

Roberts or whether, instead, a case-by-case inquiry into reliability is required. In this case, the Court of Appeals for the Seventh Circuit in an unpublished order held that Rule 801(d)(2)(E) provides adequate assurances of reliability. Likewise, the First, Fourth, and Fifth Circuits have also held that the Rule 801(d)(2)(E) requirements are identical to the requirements of the Confrontation Clause. See

Ottomano v. United States, 468 F.2d 269, 273 (CA1 1972), cert. denied,

409 U.S. 1128 (1973);

United States v. Lurz, 666 F.2d 69, 80-81 (CA4 1981), cert. denied,

455 U.S. 1005 (1982);

United States v. Peacock, 654 F.2d 339, 349-350 (CA5 1981), cert. denied,

464 U.S. 965 (1983). On the other hand, the Second, Third, Eighth, and Ninth Circuits have held that the requirements are not identical and that courts must assess the circumstances of each case to determine whether the statements carry with them sufficient indicia of reliability. See

United States v. Wright, 588 F.2d 31, 37-38 (CA2 1978), cert. denied,

440 U.S. 917 (1979);

United States v. Ammar, 714 F.2d 238, 254-257 (CA3 1983), cert. denied sub nom.

Stillman v. United States, 464 U.S. 936 (1983);

United States v. Kelley, 526 F.2d 615, 620-621 (CA8 1975), cert. denied,

424 U.S. 971 (1976);

United States v. Perez, 658 F.2d 654, 660, and n. 5 (CA9 1981).

Because of the substantial confusion surrounding this frequently recurring issue, I would grant certiorari to resolve the conflict.

No. 83-6567. ARNOLD v. SOUTH CAROLINA; and

No. 83-6575. PLATH v. SOUTH CAROLINA. Sup. Ct. S. C. Certiorari denied. Reported below:

281 S. C. 1, 313 S. E. 2d 619.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

Petitioners were convicted of murder and sentenced to death. On appeal, the convictions were affirmed but the sentences were reversed due to an improper argument the prosecution made to the jury at the sentencing hearing.

277 S. C. 126, 284 S. E. 2d 221 (1981). On remand, petitioners were again sentenced to death. They challenge that sentence on the ground that the trial court erred by allowing the jury to view the site of the murder without the presence of either the defense or the prosecution attorneys and also by making no arrangements to record what transpired at the jury-viewing. Petitioners claim that the trial court‘s action denied them their right under the Sixth and Fourteenth Amendments to effective assistance of counsel.

Gideon v. Wainwright, 372 U.S. 335 (1963).

In rejecting petitioners’ claim, the Supreme Court of South Carolina principally relied upon

Snyder v. Massachusetts, 291 U.S. 97 (1934).^* In

Snyder this Court held that the Due Process Clause of the Fourteenth Amendment was not violated by excluding a defendant from an on-site inspection by a jury.

Snyder, however, is inapposite to the case at bar. First,

Snyder involved whether a defendant had the right to be present at an on-site inspection by a jury. Here, the issue is whether a defendant had the right to have his attorney present at such a viewing. Second, and more importantly, in

Snyder the defendant‘s attorney was present and participated, along with the prosecutor, in directing the jury‘s attention to various aspects of the location under inspection by the jury.

Id., at 103-104. Here, all attorneys were excluded. Third, in

Snyder, “everything that was said or done was taken by the stenographer and made part of the record of the trial.”

Id., at 123-124 (Roberts, J., dissenting). Here, no record

was made of what transpired at the inspection. The importance of a record is clearly indicated in that portion of the

Snyder opinion in which the Court criticized the trial judge for having made an improper comment to the jury during the inspection.

Id., at 118. Although this Court excused the trial judge‘s impropriety as harmless, the pertinent point is that the Court was at least able in

Snyder to detect the trial judge‘s error and measure its severity. By contrast, in this case the trial court‘s failure to preserve a record has effectively nullified any sort of informed appellate review of the jury inspection.

It is doubtful, then, whether the trial court‘s actions in this case would even have satisfied the standards prevailing at the time of

Snyder, over 50 years ago. Far more doubtful is whether the trial court‘s neglectful failures can satisfy present constitutional standards. By excluding petitioners’ attorneys from the jury inspection, the trial court violated petitioners’ right to counsel at every critical stage of the proceedings against them. See, e. g.,

Estelle v. Smith, 451 U.S. 454 (1981) (pretrial psychiatric examination);

Mempa v. Rhay, 389 U.S. 128 (1967) (sentencing);

United States v. Wade, 388 U.S. 218 (1967) (pretrial identification procedure). Furthermore, the trial judge‘s failure to keep a record of the jury inspection contravenes this Court‘s insistence that the unique nature of the death penalty demands uniquely stringent policing of the factfinding process. See

Beck v. Alabama, 447 U.S. 625 (1980);

Godfrey v. Georgia, 446 U.S. 420 (1980);

Woodson v. North Carolina, 428 U.S. 280 (1976).

Because petitioners have raised substantial federal constitutional issues that take on added urgency in light of the death sentences pending against them, I dissent from the Court‘s denial of certiorari.

No. 82-1246. BOSE CORP. v. CONSUMERS UNION OF UNITED STATES, INC.,

466 U.S. 485;

No. 82-1554. STRICKLAND, SUPERINTENDENT, FLORIDA STATE PRISON, ET AL. v. WASHINGTON,

466 U.S. 668;

No. 82-2056. ESCONDIDO MUTUAL WATER CO. ET AL. v. LA JOLLA BAND OF MISSION INDIANS ET AL.,

466 U.S. 765; and

No. 83-1521. WEISS v. EMPLOYER-SHEET METAL WORKERS LOCAL 544 PENSION TRUST PLAN ET AL.,

466 U.S. 972. Petitions for rehearing denied.

Notes

*

The State claims that petitioners’ attorneys failed properly to object at trial to their exclusion from the jury inspection. Although petitioners’ attorneys do appear to have adequately objected, the South Carolina Supreme Court‘s ruling on the merits of the federal constitutional issue posed by petitioners removes any procedural bar that might have existed even if counsel had failed to object. See, e. g.,

Beecher v. Alabama, 389 U.S. 35, 37, n. 3 (1967) (ruling by state court on merits of federal constitutional issue preserves issue for federal appellate review);

Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98 (1938).

Case Details

Case Name: Arnold v. South Carolina; And Plath v. South Carolina

Court Name: Supreme Court of the United States

Date Published: Aug 16, 1984

Citation: 467 U.S. 1265

Docket Number: 83-6567; 83-6575

Court Abbreviation: SCOTUS