*1 MISSISSIPPI. HENRY 1964. Argued October No. 6. 18, 1965. January Decided cause, petitioner. argued Morris A. Barbara H. Carter, Jack L. Robert were brief her With Hellerstein. K. Alvin Jr., Brown, R. Jess Young,. Jr., G. Garland Lyell, Attorney Assistant General of Mississippi, argued the cause for respondent. With him on the brief was Joe Patterson, T. Attorney General of Mississippi.
Mr. Justice Brennan opinion delivered the Court, .
Petitioner was convicted disturbing the peace, by indecent proposals to and offensive contact with an 18-year-old hitchhiker to whom he given is said to have a ride in his car. The judge trial charged jury the that “you cannot find the guilty defendant on the unsupported and uncorroborated testimony of complainant alone.” The petitioner’s federal claim derives from the admission of a police officer’s testimony, introduced to corroborate the' testimony. hitchhiker’s The Mississippi Supreme Court held that the officer’s testimony was improperly admitted the fruit of “an unlawful search was in violation of 23,§ Miss. Constitution 1890.” 154 So. 2d 294.1 The tainted evidence tended to substan- tiate the hitchhiker’s testimony by showing its accuracy in a detail which could have been seen only by one inside In car. particular, it showed that right-hand ashtray the car in which the incident place took was full of Dentyne chewing gum wrappers, and that cigarette lighter did not function. police The officer testified that after petitioner’s arrest he had returned to the petitioner’s home and obtained the permission of peti- 1 Mississippi The Supreme Court opinions. wrote two first reported in July 11, 1963, issue of the Reporter Southern ad sheets, vance 2d So. 289. This was withdrawn when the court filed the second opinion, appears at page the. same in the bound volume of the Reporter; Southern Citations desig hereinafter will nate the bound volume or the advance sheet if the cited material appears only opinion. one The material referred to at point the'text,appears opinions. in both tioner’s wife look petitioner’s- car. The wife pro- vided the officer with the keys, with which the officer opened car. He testified that he lighten tried the it would not work, also the ashtray “was filled with dentyne red chewing gum wrappers.”
The Mississippi Supreme Court first filed an opinion which reversed petitioner’s conviction and remanded for a new trial. The court held that the wife’s consent to the search of car did not waive petitioner’s constitu “ tional rights, and noted estimony of [t] State’s is, witness"... in effect, uncorroborated without the evidence disclosed by inspection of defendant’s automobile.” 154 So. 2d, at (advance sheet).2 Act ing .in belief that petitioner had been represented by nonresident counsel unfamiliar with local procedure, the despite reversed petitioner’s failure to comply with the Mississippi requirement objection illegal *3 evidence be made at the time it is introduced. The court noted petitioner had moved for a directéd verdict at the close of the State’s case, assigning as ground one use of illegally obtained evidence; it did not peti mention tioner’s renewal of his motion at the close of all evidence.
After the first opinion was handed down, the State filed Suggestion of Error, pointing out that petitioner was in fact 'represented at his trial by competent local counsel, well as out-of-state lawyers. Thereupon the Mississippi Supreme Court withdrew its opin- first ion and filed a new opinion in support of a judgment 2The complaining witness also testified as to digits the last four petitioner’s of license plate, and to the fact that the first digits three were obscured; these facts were independently substantiated. Since plate license could be seen from the par, outside petitioner denied that the complaining witness had ever been in car, his Mississippi Supreme Court apparently accepted the officer’s testi mony concerning Dentyne wrappers cigarette lighter as the only cogent corroborative evidence. opinion The new conviction. affirming petitioner’s
'
,
result,
the state-
the first save for the
identical with
counsel, and the discussion
petitioner
had local
ment
to make
of failure for whatever
reason
of the effect
“In such circum-
evidence.
timely objection
in respect
counsel
if honest
stances, even
mistakes
they
binding
occur,
are
strategy or otherwise
policy
or
of courtroom
part
as a
of the hazards
upon
client
(bound volume). More-
2d,
So.
at 296
battle.”
reasoned, petitioner’s cross-examination
over, the court
of the State’s witness before the initial motion
di-
verdict,
rected
and introduction of other evidence
appearance afterward,
original
car’s interior
“cured” the
estopped petitioner
complaining
error and
from
granted
tainted evidence. We
certiorari,
It
of course, a familiar principle that this Court will
decline to review state
judgments
which rest on
independent and adequate state grounds, even where
those judgments also decide federal questions.
prin
ciple applies
only
involving
cases
state substantive
grounds,
City
Murdock v.
Memphis, 20
Wall.
but
also
cases involving state procedural grounds. Com
pare
Pitcairn,
Herb v.
S. 117,
U.
125-126, with Davis
Wechsler,
These have no application where the ground state is purely procedural. procedural A default which is held to bar challenge to a conviction courts, even on federal constitutional grounds, prevents implementation of the right. federal Accordingly, we have consistently held that the question of when and how defaults in compliance procedural rules can with preclude our consideration of a question federal is itself a federal question. City Cf. Lovell v. Griffin, 303 S.U. 444, 450. As Mr. Justice Holmes said:
“When as here there is a plain of federal assertion rights in the lower court, local as to how far it rules shall be reviewed on appeal do not necessarily pre vail. . . . Whether right was denied or given recognition due [state ... a court] ques tion as to which plaintiffs are entitled to invoke our judgment.” Love Griffith, v. 266 U. S.
33-34. Only last Term, we reaffirmed principle, holding a state appellate court’s refusal, ground on the of moot- ness, to consider a claim,. did not preclude our independent determination of the question of mootness; is itself a question of federal law which this. Court must ultimately decide. Liner Jafco, Inc., 375 U. S. 301. These cases settle the proposition that a liti- gant’s procedural defaults state proceedings do not pre- vent vindication of his federal rights unless the State’s insistence on compliance with procedural rule serves legitimate state interest. In every case we must' inquire whether procedural enforcement for- feiture serves such a state If interest. it not, does
448 to bar ought permitted not be rule procedural rights.3 important
vindication
objec-
contemporaneous
requiring
Mississippi rule
clearly
illegal
does
evidence
the introduction
tion to
immediately
By
appris-
state interest.
legitimate
serve a
gives
counsel
objection,
the trial
ing
judge
using
the trial without
opportunity
court the
conduct
is well taken the
objection
If the
the tainted evidence.
may
jury
from
illegal
of the
search
excluded
fruits
new-trial
But
consideration, and a reversal and
avoided.
purpose
that this
of the
appears
on the record before us it
may have
contemporaneous-objection rule
been substan-
tially
by petitioner’s motion at the close of the
served
asking for a
State’s evidence
directed verdict because
testimony.
of the officer’s
For
erroneous admission
stage
judgé
at
the trial
could have called for elabora-
argument
tion of the search
if
and,
persuaded,
and seizure
testimony
could have stricken the tainted
or have taken
other, appropriate
example,
corrective action. For
if
there was
competent
sufficient
evidence without this testi-
mony
go
jury,
to the
the motion for a directed verdict
might have been denied, and the case
to the
submitted
jury
properly
with a
appropriate
cautionary
worded
In
instruction.4
circumstances,
delay
until the
these
inevitably
plethora
This will not
lead
to a
of attacks on the
application
procedural-rules;
of state
where the state rule is a reason
clearly
able one
counsel, application
announced to defendant and
yield
of the waiver
will
the same
as that of the
result
doctrine
adequate
ground
nonfederal
majority
doctrine in the vast
of cases.
Mississippi
opinion
The view-of the
in its first
seems
apart
have been
there
was insufficient evidence
from the tainted
testimony
support
appropriate
Hence,
conviction.
corrective
might
action as
granting peti
a matter of state law
have included
tioner’s motion. We have not overlooked the
the first
.fact
opinion
although
trial,
practice
remanded for a new
the usual
Mississippi Supreme
verdict,
Court where a motion for directed
evidence,
improperly
renewed at the close of all the
is
denied is to
close of the State’s case in presenting
objection
cannot
be said to have frustrated the State’s interest in avoiding
delay and waste of
time
the disposition of the case.
If this
so,
and enforcement of
rule
here would serve
no substantial state interest, then
principles
settled
preclude treating the
ground
as adequate; giving
effect.to the contemporaneous-objection rulé for its own
*6
sake
“would
to force resort to an arid
of mean
ritual
ingless form. Staub
City
v.
Baxley,
”
355 U.
313,
S.
of
320; see
Wright v.
also
Georgia,
We have no reason, however, to decide
question
that
or to express
now
any view on the merits
petitioner’s
of
substantial
constitutional
claim.6 For even assuming
prosecution.
dismiss the
State,
Lewis v.
See
767,
198 Miss.
23 So. 2d
401; Adams State,
v.
202
68,
Miss.
30
593;
v. State,
Smith
So.2d
205
170,
Miss.
38 So. 2d
opinion
698. The
no explanation,
offers
of the
mandate;
the answer
probably
the
that
court refers only to the'
motion at the end of the
case,
State’s
2d,
So.
at 294, 295, and over
looks the fact that
it was renewed at the close of all the evidence,,
just as it
.presence
overlooks the
of local
If
counsel.
the motion were
not renewed,
appellate
the
court could not
prosecution.
dismiss the
State, supra.
See
Smith v.
rely
We do not
on the principle that our
precluded
review is not
the
when
court
.state
has failed to exercise
disregard
discretion to
the
procedural default. See
Georgia,
Williams v.
that the by served interest satisfied verdict directed suggests record rule, contemporaneous-objection deliberately bypassed counsel petitioner’s that possibility in the state objection timely make opportunity deemed should be. petitioner that court, thus Although remedies. have forfeited his failure characterized Court Supreme Mississippi (bound at 296 2d, 154 So. mistake,” “honest as an object Sug of its support brief in the State, volume), Mississippi Supreme Court Error in gestion of Suggestion agree willingness asserted its of the three either sustained if not be Error “should trial would participating petitioner] [for counsel know that he did not affidavit hereto with an respond in Missis in criminal court point some a trial that at testimony must to such objection that an sippi Mississippi opinion been made.” second proposal and refer to the State’s Supreme Court does not did not believe appears it thus Court Another indi for decision. properly presented issue was *7 in an attached possible appears of waiver affidavit cation respondent Court; there, brief in to the State’s as if petitioner’s lawyers up of stood that one asserted testimony, pulled and was to. the officér’s.tainted object Again, this furnishes an insufficient down co-counsel. qf time. questions the waiver at this basis decision for Error, of together proposal Suggestion with the But, evidentiary hearing to determine an enough justify it is competent consultation with petitioner whether “after' knowingly fore understandingly otherwise, or counsel 'seeking to vindicate his federal privilege went strategic, tactical, courts, whether in the state claims as the fairly can be described reasons that any or other Fay . . . .” procedures of state by-passing deliberate Noia, 439. S. 372 U.
LO. suggests evidence strategic reasons for a move. Both the complaining witness and the police testi officer the cigarette fied lighter in the car did that work. not After denial for a motion directed verdict defense called a mechanic who repaired had cigarette lighter. The might defense planned to allow the complaining witness the officer to testify that cigarette lighter did work, if then, the motion for directed verdict were not granted, to discredit both by showing witnesses that it did work, thereby persuad ing jury to acquit. Or, by delaying objection to the evidence, the might defense have hoped to invite error and lay the foundation for a subsequent If reversal. either reason motivated petitioner’s the action of counsel, plans and their backfired, counsel’s deliberate choice of strategy would amount to a waiver binding peti on tioner and preclude him from a on decision merits of his federal claim either in the state courts or here.7 Although trial strategy adopted by counsel with out prior consultation with accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balk com, 333 F. 2d (C. A. 5th Cir. we 1964), think that the deliberate bypassing by counsel of the contempora- 7 The state holding court’s petitioner estopped was because his brought up counsel question appearance the.car’s interior direct examination and cross-examination, p. 446, supra, amounts see holding a petitioner right. waived his federal In the absence showing prompted this was by litigation strategy, pres ent record insufficient support such holding. The cross-exam ination during case, the. State’s amounting to little more than a half- page printed in the record, petitioner’s adds little to failure to make contemporaneous objection. The brought evidence in on direct only examination was petitioner after had moved for a directed *8 verdict, pointing illegal to the evidence. scarcely This would support finding a of waiver.
452 strategy would of trial part as a rule
neous-objection case. in this effect that us can before record the to extrinsic
Only evidence
should have
the State
waiver, and
fact of
establish
~comparable
In
establish
fact..
opportunity
an
judg
vacated
we have
courts
in federal
arising
cases
hearing, suspend.-
a
remanded
conviction
of
ments
of
conviction
validity
of
determination
ing
States
United
hearing. See
of the
outcome
pending
v. United
Campbell
Co.,
233;
S.
Mfg.
U.
v. Shotwell
pro
a similar
adopted
recently
We
States,
85.
S.U.
of
fairness
a
an issue essential
determine
cedure
Denno,
U. S.
v.
Jackson
See
conviction.
state
think a
Stevenson,
We
453
of the case through federal courts already laboring under
congested dockets,8 or it may
unnecessary
make
the reliti-
gation in a federal forum of certain issues. See Town
Sain,
send v.
It is so ordered.
Mr. Black, Justice dissenting. Petitioner contends that his conviction was based part on evidence by obtained an allegedly unlawful search in violation of the United States Constitution. I would decide this federal question here and now. I do be- lieve that the Mississippi procedural trial rule relied by the State can shut off this Court’s nor do I review, find particle a of support for the Court’s suggestion that 8 corpus Habeas petitions prisoners filed in federal district courts 1, 903 increased 3, 531, from or 85.5%, from the 1963 to the year. 1964 fiscal Annual Report of Director, Administrative Office of the Courts, p. States United (1964); 46 our own Miscella neous Docket, prisoners where cases of state primarily are fisted, con tinues show substantial increases. The number has increased from 878 for the 1956 1, 532 Term to for the 1963 Term. 9 See Meador, Accommodating State Criminal Procedure and Fed eral Review, Postconviction (October A. B. A. J. 1964). And Brennan, see Aspects Some of Federalism, 39 N. Y. U. L. Rev. (1964). 957-959 this con- right his knowingly waived
petitioner trial court. by the decided question stitutional with agree I concerned, is of waiver as the issue As far considered the which Court, Supreme Mississippi any mistakes” “honest one object failure record I believe since might nciake,1 lawyer finding of support to. evidence barren completely proc due petitioner’s waiver intentional conscious evidence decide whether trial court to have the right ess unconstitutionálly seized. been him had against uged by the State hearing for a not remand I would Therefore *10 waiver.2 issue of court on trial or the Court Supreme had waiver á issue real considered that if I And even I decide us, before properly was shown been remand judgment Court’s agree to the I cannot it here. issue hearing on that for a courts the state case to ing the supplement to chance a the State thereby alone, giving saye from constitutional conviction to record the trial a without court a hearing before summary challenge in a invented prosecution piecemeal kind of This is the jury; States in United ago years several Court by and used my dis expressed 233. Co., 355 U. S. I Shotwell Mfg. v. frag- unconstitutional, if unjust, an from such sent 246-252, Shotwell, at S., 355 U. technique mentizing volume). (bound 289, 296 2d So. 1 154 opinion ip Court’s very cited “evidence” think that 2 I be it from which can no evidence was that there up the fact points cap support, no I find was made. waiver that conscious inferred as an first time ,as filed affidavit for does, from Court stating the district that Court, in this brief State’s appendix to -the start petitioner’s counsel one of seen had the case attorney who tried was intro the search from the evidence when chair his rise from “jerk gave a petitioner’s counsel another duced, but hard for It is “returning to his seat.” him lawyer, tail” coat even tail” “jerk coat on the infer'from could one how tome see hi' knowingly waived consciously and had petitioner suspicion that against him. offered evidence object right init again applied Court when the again year arid last at dissenting opinion 368, Denno, S. v. 378 U. Jackson Stevenson, 43, S. 379 U. also Boles v. See 401, 409-410. objections the same I have at 46. dissent noted think this I do not casé. And “Shotwellmg” present so expanded be should device dangerous Shotwellmg challenging peti- merely by it may the State invoke Mississippi’s knowledge of deny tioner’s counsel here to rule. procedural rule con- Mississippi’s procedural I do believe
Nor objec- constitutional at which stage of a trial cerning that we should is the kind rule tions should be made State ground adequate as an accept independent, ques- the constitutional refusal to decide Supreme Court’s Georgia, In Williams by petitioner. tion raised that where a State allows this Court held S.U. stage at a “to be raised late questions constitutional discretion, as a matter of we its courts determined assuming jurisdiction are not concluded from and decid- particular action in the cir- ing whether the state court is, effect, cumstances an avoidance the federal or right.” Mississippi opinions state statutes No denying have been called to our attention that I read of the State wish power Supreme Court, should that court *11 so, ques- do to consider and determine constitutional presented fact, tions at the time this was. In as I one State, understand for the Supreme counsel Court of Mississippi power does have in its consider discretion to questions regardless they presented.4 such of when are As that court has most persuasively: said rights in
“Constitutional serious criminal cases rise procedure. above mere rules of . . . Errors affect- 3 (footnote S., omitted). 349 U. at 383 4 attorneys Mississippi the State have no doubt that the (cid:127) Supreme power. argued State Court has this the case was When
456 rule exceptions are to the rights
ing fundamental in cannot raised the trial court questions Brooks v. appeal.” for the first time be raised 94, 2d 97. State, 150, 155, So. 209 Miss. citing followed, rule it stating After this to applied past of its decisions stated a number in the Mississippi, court of highest rule, same con- reversed a because that rule from, opinion quoted yiction unconstitutionally through the use of obtained present as in the case there though evidénce, seized even was_ made at the time the evidence objection been no had applied this same The court noted that it had presented. had not been proper objection in cases where rule other trial, State, citing holdings in Fisher v. at made State, 523, Carter v. 198 Miss. So. 116, 110 Miss. appears cases the 404. In all of those defendant So. 2d by local counsel. Yet represented to have been may, if apparently holds that state court Court now so, depart prior apply from its cases and it chooses to do new, against thereby stricter rule this defendant and reviewing the his prevent this Court from case to see that I rights safeguarded. constitutional were do not right the cherished federal of a believe constitutional object unconstitutionally defendant to seized evidence following exchange Court,' place before this took between a Justice and counsel for State: the. mean there is a Does that discretion court where
“Q. [state] object] it can waive failure to if it sees fit under the-circumstances? [a State, talking “A. It did so in that case I’m about [Brooks respects rights where were several defendant’s text] infra just completely trampled. absolutely rigid, unbreakable, It means that it’s not an irrev- “Q. ocable rule? right. right, your That’s
“A. That’s honor. waive it if And that the court in its circumstances “Q. . can judgment justify?
“A. That’s correct.” *12 by state- irrevocably off cut be him can against offered in different might rulings discretionary I cases. other in circumstances undefined particular re- our off shutting for device procedural such think too rights involving constitutional questions of view be tolerated. dangerous of this disposition from the I dissent reasons
For these case. Clark Me. Justice Hablan, whom with
Mr. Justice dissenting. join, Stewart Me. Justice opinion actu- federalism, Court’s of Flying banners nature. disquieting a most of signals ally raises storm principle the traditional recognize purporting While substantive, state as well as procedural, adequate an any federal here of review direct bars of decision ground Court, unless litigation, state in the claim asserted opinion,, today’s in lurking what is misconceive wholly I complete not dilution, if abolition, a severe portends to state pertaining “adequacy” of concept grounds. procedural I do observations preliminary these making
In I account For cannot ghosts. seeing I am believe demonstrably is a of what case the face remand this the Mis- ground decision procedural adequate early step an toward except as Court Supreme sissippi Fay the doctrine way or another extending in one case, de- In that Noia, review. 391, to direct S. 372 U. back its Court turned ago, the Terms only two cided at writer, opinion dissenting history (see ground adequate away with seq.), et did corpus proceedings. federal habeas doctrine Noia extending to di- any step toward Believing that challenged at out flushed should be rect review I respect- Court, óf opinion appearance earliest fully dissent.
I. *13 The Mississippi Supreme Court did not base its ulti- mate decision upon petitioner’s federal claim that his wife’s consent could not validate an otherwise improper police search of. the family but car, procedural ground petitioner (who represented was by Three ex- perienced lawyers) had objected at the time the fruits of this search' were received in evidence. This Court now strongly implies, but does not (in decide view of its remand on the “waiver” issue) that enforcement of the State’s “contemporaneous-objection” rule was inadequate as a ground state of decision because petitioner’s mo- tion for a directed of verdict acquittal afforded the trial judge a satisfactory opportunity to take “appropriate cor- rective action” with reference to the allegedly inadmissible evidence. Thus, it is suggested, this may abe situation where “giving effect to the contemporaneous-objection rule for own sake ‘would be to force resort to an arid ” ritual of meaningless form.’ (Ante, p. 449.)
From the standpoint of the realities the courtroom, I can regard only the Court’s analysis as little short of fanciful. The petitioner’s motion for a verdict could provoked have one of three courses of action by the trial judge, none of which can reasonably be considered as depriving the State’s contemporaneous-objection rule of its capacity to serve as an adequate ground. state
1. The trial judge might have granted the directed ver- dict. But had this action been appropriate, the Supreme Court of Mississippi,.in its first opinion, would have or- dered prosecution dismissed. it Since not, did and the matter is entirely one of state law, further speculation by this Court should be foreclosed.1 court, 1 The as a matter of law, could have (a) found there was sufficient corroborative evidence, (b) that none was neces sary; (c) or that retrial necessary was prevent to defendants in erim- The mistrial. directed have might judge The trial 2. con- through mistrials preventing interest State’s is obvious. requirement temporaneous-objection given example action remaining course The 3. mo- denied could judge the trial Court; by the elab- called sponte, but, sua verdict, directed tion .for search determined argument, oration cautionary given, unconstitutional, and was automobile inadmissible disregard jury to the instructions it. submitted was the case when evidence mani- are approach with difficulties practical in their interest a substantial show festly sufficient for the basis “adequate” show thus avoidance, rule. contemporaneous-objection to the adherence State’s for directed motion quote I must my point make To *14 full. verdict motion, your amake to going We’re
“Atty Carter: areWe case. in this directed-verdict for a Honor, First, grounds. several on motion our base to going de- this by process whole this that we think brought be to attempted or brought was fendant and void. illegal is of this Court jurisdiction into show this case record in the nothing is There defend- against issued was that the warrant that in this State based must upon based was ant —it proper aon affidavit, on State any other and True, any party. complaint proper or a affidavit made, was affidavit some testimony that there is.-Some rec- in the but so, said witness complaining case s State completion of until hanging back from eases inal crucial piece of evidence moving strike time first for then jury. to the case getting the may proceed 4) we that (ante, p. n. suggestion Court’s "overlooked”, the Supreme Court Mississippi that speculation completion at the made verdict directed motion renewal comment. requires hardly case ord in this case which is before the Court, no such affidavit present is and there is a verification from , the Justice of the (cid:127) Peace that no such is affidavit. present in this case; therefore, we contend that warrant under which this defendant was subjected to arrest was illegal and without force and effect. Secondly, we , contend that the warrant having been issued and the testimony of this Mr. Collins on the stand to the effect that after he placed had this man under arrest, he then proceeded to go and search his car, and clearly, this is a violation his rights under the Fourth Amendment, and it is unlawful search and seizure so the evidence that they have secured against this defendant is illegal and unlawful. Fi- nally, we contend that on the basis of these facts that the affidavit under which the defendant was tried before the Justice of the Peace Court, we contended yesterday, based upon the statement was sworn to by the County Attorney, not on infor- mation and belief, but directly that this void defective and give could the Justice of the Peace no jurisdiction in this case. We contend under these circumstances that the State —that this is an illegal process; rights man’s have been violated under the Fourteenth Amendment, and finally, we contend that the State has failed to prove beyond a reasonable doubt to any extent implicate this man in this case. Now, on these basis we [sic] contend this whole process is illegal and void, and that *15 it permeated has and contended [sic] the whole process insofar as the - jurisdiction of this Court is concerned or jurisdiction over individual is con- cerned; therefore, he should be released, and we move for a directed verdict.
“Court: Motion overruled. Bring the jury back.” completion of the defense renewed at the motion was -The following language: in the at the close at this time Honor, Your
“Atty Carter: for directed motion a make a we want to of the case the reasons grounds on the bas,e it arid verdict. We ver- for a directed in our motion forth we set make it case. We now of the State’s the close dict at grounds on those and case at close the entire be- shown that the evidence has grounds on the law that under doubt yond reasonable any charge. therefore We guilty is defendant time. a verdict at make a motion for directed is overruled.” Motion “Court: (supra, p. 460) is motion in the sentence first single The ques seizure the search and reference to only direct of the trial. to from end beginning tion motions knows, any experience lawyer of every trial As a matter as made generally are for directed verdicts gen- and are prosecution’s case, close of course at the case Unless consideration without close erally denied con- in this unrealistic simply is It clearly borderline. single out the pick judge trial expected to have text motion verdict the .directed from vague sentence imagination the refined with upon acted it lawyers ap- Henry’s three him. require Court make- claim and seizure the search regarded parently the trial it earlier not mentioned They had weight. it. raising laxity in their explanation gave no ain cur- they so it, did they did mention when And secondary placed sentence conclusional sory and theory under- motion. a directed verdict position in wife’s, argument seizure the search lying —that in- car is family search permission freely given and as the matter very least, say subtle valid —is *16 presented was to the judge trial it would have been ex- traordinary caught had he it, or even realized that there problem was a serious to catch. But this is not all the Court require of him. He must, addition, realize despite inappropriateness of granting the directed requested verdict of him, he could partially serve the cause the defense it taking upon himself to frame and give cautionary instructions to the jury disregard evidence obtained as fruits of the search.2
Contrast with this the situation presented by a con-
temporaneous objection.
objection
must necessarily
single
directed to the
question of admissibility;
judge
inevitably
must
focus on it;
there would be no
doubt as to
appropriate
form of relief, and the effect
of the trial judge’s decision would be immediate rather
than
Usually
remote.
proper
timing of an objection
will force an elaboration of it. Had objection been made
in this case during the officer’s testimony about
search, it would have called forth of its own force the
specific answer that
the wife had given her permission
and,
turn,
the assertion that the permission was ineffec-
tive. The issue, in short, would have been advertently
2Furthermore, even if
fully
counsel had
argument
elaborated the
and had made it in the context of a motion to strike rather than a
motion for
verdict,
directed
judge
the trial
properly
could
exercised
(as
his discretion
Mississippi Supreme
did)
Court
any
denied
power
relief.
recognized
This
judges
trial
in the
system
prevent
in order to
“ambushing”
of a
through
trial
withholding
objection
of "an
that should have been made when
questionable
was
evidence
first
introduced. Federalism is turned
upside down if
judges
it is denied to
in'
systems.
the state
See Fed.
(e)
Rules Crim. Proc. 41
26;
United
Milanovich,
States v.
626,
F. 2d
denied,
cert.
876; Hollingsworth
371 U. S.
States,
v. United
342, 350;
321 F. 2d
Isaacs v. United States,
Thus maximizing is that rule contemporaneous-objection errors minimizing concomitantly decisions correct *17 for The alternative and retrials. mistrials requiring motion, long from a who, judge trial a to reverse is State imagination with remarkable and act out pick fails to admissibility relating to vague single sentence a upon deci- is a judge A trial admitted. long since of evidence of his out force him To an advocate. sion-maker, not arguments coax out him by requiring rolé proper for the remedies requested reframe the imaginatively and responsi- more him place upon is to him before counsel discharge. expected can judge bility than trial could action'' corrective “appropriate was no There contempo- purposes the. satisfied realistically had the State question Without rule. raneous-objection procedure, integrity of maintáining the in an interest question rule in on the reliance doubt without and thus federal petitioner’s review bar direct “adequate” is this by claim Court.3
II. in only emerges case remanding this real reason The out pointed is It opinion. closing pages of-the Court’s con- rule contemporaneous-objection were that even not, ground, state this adequate to be an sidered fed- Henry’s Noia, consideration preclude Fay v. under shows, Mississippi Supreme Court by opinion the first As procedural to lower in circumstances discretion certain there is exercise completely free to is that this Court not follow bar. It does do so courts we federal from lower Even cases that discretion. its decisions If, in order insulate only an abuse. if there has been strip itself of must Court, from reversal of circum sets between different power to discretionary differentiate way. pervérse operates in a rule stances, the most
eral claim in corpus federal habeas unless it were made to appear Henry deliberately had his waived federal claim in proceedings. the state It is then said that the interest of “efficient administration of criminal jus- tice” and “harmonious” relations between state judiciaries the Mississippi given should be courts the opportunity to pass, the first instance, on the issue; the waiver prospect entertained that such action part of this Court will encourage the States to grasp by Fay “opportunity” v. Noia afforded Townsend v. Sain by providing “state procedures, direct or collateral, for a airing .full of federal claims.” It is “suggested” were this to be done “irritation” “friction” respecting the exercise of federal corpus habeas power vis-á-vis “might convictions be ameliorated.”
What does all signify? being are States invited to voluntarily obliterate all state procedures, how- ever conducive they may be to the orderly conduct of liti- *18 gation, which might thwart state-court consideration of federal claims. But what if the States do accept invitation? Despite soft-spoken Court's assertion principles” “settled will applied be in the future, I do not think the intimation will be by any missed discern- ing reader of the Court’s opinion that at the least a sub- stantial dilution of the adequate state-ground doctrine may expected. A contrary prediction is belied implication of the opinion that under “settled principles,” the contemporaneous-objection rule, upon in relied case could be declared inadequate.
To me this would not be a move toward “harmonious” federalism; any further disrespect for state procedures, longer no cognizable at all in federal habeas corpus, be the would very antithesis of it. While may some say that, given Fay Noia, v. what the Court is attempting to do is justifiable as a means of promoting “efficiency’' in the administration of criminal justice,, it is the sort some, in appropriate though perhaps which, efficiency congenial is not federalism, form watered-down I venture was ours. supposed I had federalism kind as we system believe who to all say that our Constitution aspect priceless abe it to known no will be today’s decision implicit spectre alism, the done already has Court than what disturbing less Fay Noia. ade- rests below judgment
Believing that writ I dismiss ground, independent quate granted. improvidently ás case issued