*1 MORRIS, SUPERINTENDENT, SOUTHERN OHIO
CORRECTIONAL FACILITY MATHEWS Argued No. 84-1636. February 26, November 1985 Decided *2 White, J., opinion Court, delivered the in Burger, J., which C. Rehnquist, Stevens, O’Connor, JJ., and joined. and Blackmun, J., opinion concurring filed an in judgment, in Powell, J., which joined, post, p. Brennan, J., 248. post, p. Marshall, J., post, p. 258, dissenting opinions. filed Attorney
Richard David Drake, Assistant General of Ohio, argued petitioner. the cause for himWith on the brief was Anthony Attorney Celebrezze, Jr., J. General. George argued
Michael respondent. Dane the cause for himWith on the brief was Edward F. Marek. opinion delivered the of the Court.
Justice White question presented in this case is whether a state appellate provided adequate remedy court for a violation Amendment, of the Double Clause of the Fifth modifying jeopardy-barred conviction to that of a lesser included offense that is not barred. On February respondent
I 17,1978, James Michael Mathews Daugherty and Steven robbed the Alexandria Bank in Al- exandria, Ohio. police After an finally automobile chase, the they stopped surrounded the two men when at a farmhouse. police Soon thereafter, heard shots fired inside the house, respondent emerged then surren- from the home and police. they dered When house, the officers entered the Daugherty found dead, shot once the head and once police money chest. The also found the from the stolen bank pantry. hidden custody, respondent gave
inOnce a series of statements to given law enforcement statement, officials. In his first one Daugherty respondent hour after his claimed that surrender, robbery by and another man had forced him to aid the bank threatening girlfriend. kill both and his Re- spondent shooting Daugherty. denied In the second state- given day, respondent again shooting ment, the same denied Daugherty, but admitted that no other man was involved robbery, Daugherty with the and that he and alone had *3 planned performed and the crime. days respondent gave po- later,
Two a third statement to again robbing lice in which he confessed to the bank. Re- spondent Daugherty also related that after he and arrived at the farmhouse, he had run back out to their van to retrieve money, way the stolen and on his inside, back he “heard a App. Upon muffled shot from inside the house.” 4. investi- gation, respondent Daugherty discovered that had shot him- Respondent Daugherty in self the head. claimed that was still and conscious, called to him name. Ibid. County initially Daugherty’s Coroner ruled death to be
a suicide. The Coroner made this determination, however, receiving autopsy performed by before the results of an a pathologist. report Daugherty forensic This indicated that shotgun. had received two wounds from the same ini- Daugherty standing, tial shot had been fired while was and entered the left side of his face. This shot fractured Daugherty’s skull, and the mere force of the blast would have immediately rendered him unconscious. This wound was not Daugherty lying fatal. The second shot was fired while directly on his and back, was fired into his heart from ex- tremely range. instantaneously close This shot was fatal. supplemen- a evidence, Coroner issued As a result of gun listing “multiple wounds” as shot certificate, tal death Record the cause of death. 295. Daugherty opinion first took
Based the Coroner’s on charge respondent did not life, his own State Daugherty’s Instead, he was indicted under Ohio death. 1984) §2911.01 (Supp. Ann. on rob- Rev. Code May pleaded guilty bery charges.1 Respondent and on of from to sentenced to a term incarceration years. entering plea, respondent days his made
Two after having he admitted shot first of two statements which Respondent Daugherty Daugherty. ini- maintained tially still head, himself in the and that he was alive had shot returning respondent him after to the farm- discovered when money. Acting theory that, on with the stolen house Daugherty could claim that he was dead, were respond- kidnaped voluntarily bank, had not robbed gun] [Daugherty’s] “put [the inch or from chest ent two pulled App. Respondent’s trigger.” 6.2 second 1984) (Supp. § 2911.01 1 OhioRev. Code Ann. states: “(A) offense, attempting committing as defined person, or theft No fleeing immediately Code, after such in section 2913.01 of Revised or offense, following: attempt or shall do either of the “(1) deadly dangerous ordnance, weapon or as defined section Have a Code, person control; his or his or under 2923.11 of the Revised on about “(2) Inflict, attempt physical inflict harm on another. serious *4 “(B) robbery, guilty aggravated violates this section is Whoever felony degree.” aggravated the first robbery
Respondent also the van in the and was indicted theft of used burglary. statement, pertinent part, in reads as 2 Respondent's handwritten follows: it was still out money I the was and he said “At time ask steve were get in van to the going me out the
in the I tould him to cover I was van. I out to careful and then money. right to me before I went He said ready van, getting to come back and I was out there went out to the when I yelled in for steve. shot and I ran and then heard in I heard a muffled given these same later, reiterated one week statement, points. Id., at 8-16.
n OnJune respondent charged 1, 1978, the State Daugherty. aggravated Rev. Code Ohio murder of Steven (1982) “pur- part, aggravated §2903.01 in as murder, defines fleeing causing] imme- posely . . . while the death of another robbery.”3 aggravated diately committing . . . after robbery aggravated was the to in the indictment referred robbery Bank to which the Alexandria armed guilty. previously pleaded trial court denied state had aggravated respondent’s pretrial mur- motion to dismiss Jeopardy Clause of of the Double indictment as violative der Fifth Amendment. judge instructed evidence, the trial At the conclusionof aggravated mur- of the offense of as to the elements up I and seen steve moning up stairs. then ran stairs something like a head and himself somewere the floor. He had shot laying there on mike, mike, said pretty He then seen me and bleeding bad. trying fuck, gun had the in his hand and was moning, and I said oh he still me mike mike in a droped it And he then said to upit but failed and to load I pain I in a lot of and me. ... knew he was moning please voice shot pretty shape. But I really though him he was bad shot even couldn’t myself quick that he was to, then I said to real really didn’t want but prove I kidnapped. they And couldn’t say I that I was dead could put and it laying I that was in steve hand the bank. So took shell robbed pulled inch or from his chest and put I then I it about an two gun in the gun dropped much after that but the trigger. really I don’t know body. I stairs and looked steve then run down on the floor not to far from App. place money.” 5-6. for a to hid the (1982) pertinent part, provides, §2903.01 as Rev. Ann. Ohio Code follows: “(B) the death of another while commit- person purposely shall cause No commit, immediately com- fleeing while after ting attempting or or kidnapping, rape, aggravated arson or attempting commit mitting or burglary burglary, or arson, robbery robbery, aggravated aggravated or escape. “(C) this section is Whoever violates the Revised Code.” punished provided in section 2929.02 of shall be as *5 jury judge on the lesser also instructed der. The murder follows: of as included offense beyond proved you a reasonable that the “If find State aggravated murder, elements of all of the essential doubt your crime and that must be that verdict you not consider lesser offense. will event prove you kill- find that the State failed “But committing ing or while the defendant was done aggravated immediately committing fleeing after rob- killing purposely bery, was nonetheless but that your you proceed and deliberations de- done, will proved beyond a reasonable the State has cide whether or of the lesser crime murder. doubt elements aggra- distinguished from “The of murder is crime prove the kill- failure to murder State’s vated committing ing defendant was was done while the aggra- immediately committing fleeing the crime of after robbery.” App. 21. vated respondent guilty aggravated found imprisonment. him to a term life court sentenced claiming
Respondent appealed
his
trial
conviction,
his
following
aggra-
aggravated
conviction for
his
robbery
Jeopardy
the Double
Clause. The
vated
violated
Appeals,
District,
Fifth
affirmed his
Ohio Court of
Judicial
(Licking County,
Mathews,
State v.
CA No. 2578
conviction,
1979),
grant
Aug.
Supreme
declined to
and the Ohio
Court
9,
(Dec.
discretionary
Mathews,
v.
No. 79-1342
review. State
1979).
granted respondent’s petition
This
for writ
7,
Appeals’judgment, the Court of
re-
certiorari,
vacated
light
the case for further consideration
of Illinois
manded
(1980).
Ohio,
Mathews v.
448 U.
Vitale, 447 U. S.
S.
v.
remand,
On
the Court of
found that
Double
Vitale,
construed
this Court
barred
Clause, as
respondent’s
State
murder.
conviction for
1980).
County,
(Licking
Mathews,
Nov.
No. 2578
*6
§
aggravated
noted, however,
court
that 2903.01defines
mur
purposely causing
der as
the death of another while commit
§2903.02
ting certain felonies, and that
defines murder sim
ply
purposely causing
App.
as
the death of another.
to Pet.
respondent’s
for Cert. A-26.4 In
trial,
“if all
therefore,
relating
aggravated robbery
facts
to the
of which he was con
jury,
victed are excluded from consideration of the court and
charged
the defendant was still
with and convicted of murder
purposely
Daugherty
in that he did
cause the death of Steven
charged.”
Accordingly,
Ap
on the date
Ibid.
the Court of
peals
modified the conviction of
murder to mur
respondent’s
der and reduced
sentence to an indefinite term
years
again,
of from 15
Id.,
to life.
at A-27.5 Once
Supreme
respondent’s
appeal,
Ohio
Court denied
motion to
subsequent petition
and this Court denied his
for certiorari
(1981).
review.
Ohio,
Mathews v.
guilty charged guilty attempt of the offense but of an to commit it if such an attempt indictment, information, is an offense at law. When the or com- offense, plaint charges including degrees, or if lesser offenses in- are charged, may guilty cluded within the offense the defendant be found not charged guilty thereof, the offense but degree of an inferior or of a lesser included offense.” 33(A)(4):
The court also cited Ohio Rule of Criminal Procedure
“(4)
That the verdict is not sustained
sufficient evidence or is con-
trary to law.
If the evidence shows the
guilty
defendant is not
of the de-
gree
convicted,
of crime for which he
degree
but
of a lesser
thereof,
therein,
may modify
or of a lesser crime included
the court
finding accordingly,
granting
ordering
trial,
verdict or
without
a new
pass
finding
sentence on such verdict or
and shall
as modified.”
respondent’s petition. Mathews v.
denied
the District Court
1983).
(WD
Apr. 19,
Ohio,
Marshall, No. C-1-81-834
panel
for the Sixth Cir-
A
divided
F. 2d 158
Marshall, 754
Mathews v.
cuit reversed.
Although refusing
this a
trial
that in a case like
new
to hold
always necessary,
charge
the court held
the nonbarred
on
jeopardy
double
in violation of the
“a
obtained
conviction
can
if the defendant
show
be modified
clause cannot
prejudiced’ by
possibility that he was
‘reasonable
there was a
exceedingly
and that “‘an
violation,”
the double
quoting
showing
Id.,
at
Gra-
. . . would suffice.’”
small
*7
(CA2 1979). Apparently
Smith,
F.
1083
ham v.
602
2d
respondent’s
agreeing
“evidence was ad-
assertion that
aggravated
for
murder that would not have
mitted in his trial
stating
in a
that the
murder,”
trial for
been admissible
“may
prejudiced”
[been]
jury
evidence,
that
the
have
respondent had
court concluded that
established sufficient
possibility
prejudice
a new trial on the murder
of
to warrant
supra,
charge.
Marshall,
at 162.6
Mathews
(1985),
granted
now
II matter, an note several issues that are not As initial we dispute. our the the State concedes that under cases First, aggravated prosecution murder of violated Similarly, respondent Jeopardy con- the Double Clause. try- prevent the Clause not the State from cedes that would ing him all of that have re- Next, for murder. the courts agreed finding respondent that, case have viewed this necessarily guilty aggravated jury the of found “purposely cause[d] the another,” he the death which is §2903.02 Ann. definition of murder under Ohio Rev. Code Finally, supra. is not a 4,n. “harmless See that, separate in a on dissenting judge of the view even trial prove charges, evidence allow the State “to the murder rules of would circumstances, including surrounding just- surrounding the facts (Brown, J., robbery.” dissenting). completed F. 2d at bank aggravated allowing respondent tried for to be error” case: sense harmless. error, and it was not murder was only us is issue before aside, these considerations With aggravated reducing respondent’s conviction for whether remedy adequate murder is murder to a conviction for the double violation. argues
Respondent the trial for because that, occurred, Double never have murder should jeopardy- taking advantage of the from Clause bars State converting into a conviction for the it barred conviction that a new trial must be He submits of murder. lesser crime prejudice. showing granted not there is a whether Georgia, heavily Respondent Price v. 398 U. S. relies on (1970), misplaced. Price was tried for his reliance is but offense of man- of the lesser included and convicted murder appeal, slaughter. reversed on After that conviction was and another conviction of trial for murder there was another manslaughter. held that the second We the lesser crime impliedly Price had been not stand because conviction could acquitted not tried the first trial and could murder at charge. again “determine Id., at 329. Nor could we on charge against petitioner induced or not the whether serious offense of volun- him of the less to find manslaughter tary his inno- rather than to continue to debate *8 Id., at 331. cence.” impose holding retrial in Price did not an automatic
This jeopardy-barred is tried for a a defendant rule whenever Rather, offense. of a lesser included and is convicted crime for man- that the conviction relied on the likelihood by slaughter trial on the murder influenced had been greater charge charge for which the offense —that willing jury unwilling jury also made the less to convict charge. on the lesser defendant’s innocence to consider the prejudice present finding presuming is not That basis for greater acquit jury of the of- did not Mathews here. guilty aggravated him of that murder, but found fense charge murder as well. of the lesser offense of a and, fortiori, (1969), strongly in- also Maryland, U. S. Benton v. trying must show that prevail here, Mathews dicates that to charge jeopardy-barred tainted his conviction him on the lar- Benton was tried for both offense. lesser included acquitted larceny jury ceny him burglary. on the and burglary. guilty of His conviction was him count, but found jury improperly had been sworn. because later set aside burglary larceny, again for both and tried Benton jury him of both offenses. The found the second Maryland there had no double held been disagreed, ruling jeopardy we that the Double violation, but setting larceny required conviction Clause aside Id., at 796-797. and sentence. urged burglary that his convictionmust also fall be-
Benton admitted at his second trial would not cause certain evidence burglary had he been tried for alone. have been admitted prejudiced the evidence, claimed, This he and influenced burglary. rejected their decision to convict him of We argument, saying “[i]t [was] both that not obvious on the face burglary by of the record that the convictionwas affected and that we should not make this violation,” double evidentiary prior kind of determination “unaided consider- (footnote omitted). Id., ation the state at 798 courts.” Maryland judgment thus re- court, We vacated the proceedings. manded for further suggests that a
Neither Benton nor Price conviction for inherently tainted if tried unbarred offense is jeopardy-barred suggest charge. Instead, both cases that a required only the defendant new trial is when shows a reli- perceive depart- prejudice. able inference of We no basis for ing except approach from that murder here; this was a charge lesser offense in the included charge, separate rather than a there is no difference between jeopardy purposes. case and Benton for double Accordingly, jeopardy-barred we hold that when a convic- tion is reduced to a conviction for a lesser included offense
which is not to the barred, the burden shifts defend- ant probability to demonstrate a that he would reasonable not nonjeopardy-barred have been convicted of offense presence jeopardy-barred absent the offense. In this probability” situation, we believe that a “reasonable is a probability sufficient to undermine confidence the out- come. Washington, Cf. Strickland v. 466 U. S. 668, (1984). purposes Jeop- all, After one of the of the Double ardy prevent multiple prosecutions pro- Clause is to and to suffering tect an individual from embarrassment, anxi- ety, expense of another offense, trial for the same Green States, v. United 355 U. In S. 187-188 cases jury necessarily this, like therefore, where it is that the clear found that the defendant’s conduct satisfies the elements of incongruous always the lesser included offense, it would be yet curing order another trial as a means of a violation of the Double Clause. rejecting
The Court of thus was correct re- spondent’s per se submission, but it was nevertheless too ready necessary showing prej- to find that he had made the possibility” udice. First, the court’s “reasonable standard, exceedingly showing,” which could be satisfied “an small sufficiently demanding. prevail was not To in a case like improper this, the defendant must that, show but for the jeopardy-barred charge, inclusion of the the result of the proceeding probably would have been different. Appeals appeared agree
Second, the Court of with re- spondent that certain evidence admitted at his trial would not separate have been admitted trial for murder, but it did expressly say not so, nor did it refer to Ohio authorities. Marshall, Mathews v. 754 F. 2d, at 162. The State submits tending that under law, Ohio conduct of a defendant to show plan system,” either “his motive or intent,” “scheme, or his “notwithstanding proof may admissible, that such show or tend to show the commission of another crime the defend- *10 (1982).7 §2945.59 generally See Ann. ant.” Ohio Rev. Code E. 2d Moorehead, 166, 169, 2d 265 N. OhioSt. State v. appeals’ normally accept of of view a court We admissibility if this case turns on law, state challenged but separate the issue murder, trial for evidence thorough the lower court. consideration deserves a more ques- Finally, that the admission of the court’s observation jury” “may prejudiced far falls evidence have tionable at issue conclusion that the evidence of a considered short separate there murder, in a trial for was not before the respondent probability have would not is a reasonable convicted. been Appeals’ legal and factual basis for of
Because seriously corpus ordering to issue was the writ of habeas judgment and the case is remanded to flawed, reversed, its Appeals proceedings consistent with for further opinion.
It is so ordered. joins, with whom Justice Powell Blackmun, Justice judgment. concurring in the remedy jeopardy-barred prosecution and conviction
To Mathews for mur- James Michael (1982) §2945.59 provides Ann. as follows: Ohio Rev. Code intent, any the ab- “In criminal case which the defendant’s motive or scheme, plan, part, or accident on his or the defendant’s sence of mistake material, system doing which tend or an act is acts of the defendant intent, part, his his motive or the absence of mistake or accident on to show may scheme, plan, system doing question or the act in or the defendant’s they subsequent proved, contemporaneous prior are with or whether thereto, may notwithstanding proof that such show or tend to show of another crime the defendant.” commission 404(b) Similarly, Ohio Rule of Evidence states: “(B) crimes, crimes, wrongs, wrongs or acts. Evidence of other Other person in order to show prove the character of a or acts is not admissible however, conformity may, be admissible for that he acted in therewith. It intent, motive, preparation, purposes, proof opportunity, other such as identity, mistake or accident.” plan, knowledge, or absence of appellate the conviction to court modified der, the Ohio not included offense of which was one for the lesser The United States Court of barred. constitutionally remedy insuffi- held this the Sixth Circuit possibility” that the there was a “reasonable cient because aggravated-murder charge prejudiced presence re- against charge spondent’s I think defense of murder. right Appeals applied the standard but reached the Court of *11 today’s judgment wrong Accordingly, I concur result. join opinion. but do not the Court’s
H- pleaded guilty Respondent to armed concedes that after he robbery him murder violat- could have tried for without Ohio Disagreeing Jeopardy ing with the the Double Clause. presence Appeals, that the however, he contends jeopardy-barred charge aggravated murder his of the subsequent automatically rendered unconstitutional trial correctly any resulting that trial. The Court conviction from position points that this cannot be reconciled with out judgment Maryland, 784 terms of the Benton v. U. S. (1969). respondent’s primary Moreover, at 246. ante, See argument position unconvincing. He asserts that for his aggravated modifying conviction from murder down his simple possibly violation, cannot cure the because Jeopardy the violation. The Double trial itself constituted holding prohibit trial, from however, did not Ohio Clause, (It aggravated only seeking for murder. from a conviction obtaining aggra- a conviction for also barred the State from prohibition was reme- vated but the violation of that judg- by appellate modification of the died the Ohio court’s ment.) held, the trial but error, then, The was not that was prosecution improperly did some- that it broad. aggra- thing respondent for it not allowed to do: it tried simple It is true that murder. vated murder addition simply prosecutorial prohibited for not conduct at issue is outcome, the trial’s but also for its effect on potential a conse- it the defendant. As put ordeal which through sentence reducing respondent’s it is also true quence, him for the violation: it does not com- make “whole” does not inflicted mental him, example, anguish pensate him for the offense. prosecution upon (1970). Price v. n. 10 Georgia, 323, 331, 398 U. S. See from these considerations But it follows hardly to set the entire remedy always must aside appropriate another since one yet trial, particularly conviction and have the Double Clause is to promote purposes trials for the same offense. by avoiding multiple finality held that Accordingly, trial on the murder was entitled to a new he charge only demonstrated a “‘reasonable that he was possibility preju Mathews Marshall, diced’” the violation. v. 754 F. 2d (CA6 Smith, Graham 158, 1985), 602 F. 2d quoting denied, cert. 444 U. (CA2), S. here now that standard and holds that a de majority rejects fendant must demonstrate “a reliable inference of prejudice.” *12 Ante, means, at 246. This the majority explains, that re must show without the error “there is a rea spondent probability” sonable that he would not have been convicted of Ibid, added). In murder. a third (emphasis yet formulation standard, of its the Court announces: “To prevail a case like this, that, defendant must show but for the improper inclusion of the jeopardy-barred charge, the result of the would have been Ante, probably different.” at proceeding 247. To the extent that these standards differ from the “rea sonable test the Court of possibility” applied Appeals, they are, my view, unprecedented and inappropriate.
I—I I—I Court starts out on the foot wrong asserting that Ante, “this is a not ‘harmless error’ case.” at 244-245. this is a “harmless error” case. Fundamentally, Ohio con- cedes that it violated the Double Clause. To say remedy imposed by
that the
state courts
constitu-
tionally adequate
simply
say
is
to
that the State’s acknowl-
edged transgression may
respect
be deemed harmless
to
respondent’s conviction for the lesser
In
included offense.
Chapman
(1967),
v.
The “reasonable
standard
(1963),
applied
Connecticut,
v.
“The not be a ends of would served actually prej- that the accused was factual determination charged by being prosecuted ... for and udiced justice degree first nor would the ends of insisting upon quantitative served measurement of energies prejudice. resources consumed inquiry staggering and the attainable such would be certainty unsatisfactory.” at Id., level 864. most Georgia, Hetenyi This Court relied on Price v. 398 U. S. (1970), facts. Price was for a case with similar tried manslaughter. guilty His conviction murder and found times, Hetenyi actually first-degree mur tried three each time offense, In trial he convicted of that but the second der. the second conviction, first, appeal grounds on than like the was reversed on other second-degree in a jeopardy. The third trial resulted conviction double murder. *14 overturned on he was retried for
was
and he
appeal,
was found
This Court held
again
guilty
manslaughter.
that the
for murder was barred on double
reprosecution
jeop-
and
the
that
the
ardy grounds,
rejected
State’s argument
error was rendered harmless
the fact
by
the second
convicted Price
of the unbarred
only
offense. Citing
Hetenyi, the Court noted that “we cannot determine whether
or not
murder
induced
charge against petitioner
the jury
to find him
less serious offense of
man-
voluntary
rather
than
slaughter
to continue to debate his innocence.”
at 331. The
S.,U.
Court did not
explicitly employ
standard,
“reasonable
but it observed: “The Dou-
possibility”
ble
Clause ...
is cast
terms of the risk or hazard
of trial and
not of the ultimate
conviction,
legal consequence
to
of the verdict. To be
to a sec-
charged
subjected
is an
ond trial for
ordeal not to be viewed
first-degree
Ibid. no
certainly gave
indication that
lightly.”
it
consider the error harmless unless Price
would
could show
that “but for the
inclusion of the
improper
jeopardy-barred
the result of the
would have
charge,
proceeding probably
ante,
been different.”
See
at 247.2
Price,
Appeals
Since
three Courts of
have reviewed whether a double
jeopardy
adequately
violation
modifying
jeopardy-
remedied
jeopardy-
barred conviction to one for a lesser included offense that was not
barred;
case,
Appeals
like the Court of
for the Sixth
Circuit
each of
Hetenyi.
Smith,
In Graham the other two courts has followed
(CA2),
denied,
(1979),
F. 2d 1078
cert.
The Court of for the Fifth Circuit took Lucas, (1982), (1981), denied, 456 S. Tapp v. F. 2d 383 cert. U. 972 Tapp prosecuted resembling those here. for which also involved facts aside, manslaughter. murder and convicted of conviction set remedy retried this with success. To the double he was for time jeopardy violation, Supreme Court reduced the second conviction the State Smith, Appeals upheld Citing Graham of manslaughter. the Court remedy problem avoiding yet as to the “a common sense solution Price on the 2d, distinguished trial.” F. at The court another 386. jury compromise possibility ground simply is ab prejudicial that “the Ibid, added). (emphasis from this sent case.” Strickland, probability” today defines a “reasonable as As in Ante, in the probability sufficient to undermine confidence outcome.” “a Strickland, Strickland, S., however, specifi In 247; at 694. we at U. more cally require showing “that counsel’s deficient conduct refused respondent’s rights Jeopardy under the Clause were Double violated when Ohio tried him murder. The question is not whether violated the Sixth Ohio has also question Amendment or the Due Process Clause. damage sufficiently whether the State has from contained acknowledged its Clause, violation of the Double transgression whether that the conviction taints even simple murder. At issue which the is the extent to law will may through tolerate a conviction that have been obtained abridgment rights. of a defendant’s constitutional Once it is established that the State the Constitution in has violated prosecution, proceedings pre- course of a lose whatever sumption regularity formerly enjoyed, they and the State properly heavy arguing bears a burden that the result should nonetheless treated as valid.
By ruling, despite Chapman, that a defendant a case possibility such as this must show more than a reasonable *16 prejudice to invalidate the conviction, makes dou- readily any ble violations more excusable than other kind of constitutional me, error. For that makes little sense. Violations of the Double Clause are no less serious protections. than violations of other constitutional Their excusability judged by should the same standard. The explanation special leniency Court offers no real for the it today, announces and there is none. I—II—I proper question in this case is thus whether Ohio beyond aggravated-
has shown a reasonable doubt that the charge respondent’s did not contribute to conviction simple Chapman Fahy murder. Under this means likely than Id., not altered the in (emphasis outcome the ease.” at 693 added). The Court’s reliance on of Strickland there- language some of the particularly fore puzzling wholly unprecedented renders its demand one paragraph later respondent the here demonstrate that without jeopardy-barred charge “the proceeding probably result of the would have Ante, been different.” at 247. any convincingly disprove reasonable must that the State respondent’s charge prejudiced greater possibility that the prejudice against errors, most the lesser. With defense the defend- that there is no need for feared is so obvious to be illegally spell is intro- obtained evidence ant to it out. When prosecutor it is remarks, makes forbidden or when the duced, illegal danger that the evidence or that the understood jury. case, however, In this will influence the the remarks way in could have obvious which defendant there is no jeopardy-barred prejudiced. The conviction for the been lesser included unbarred, reduced to one for offense was possibility compromise verdict, as There is no offense. Hetenyi convicted for the Price, in because here greater charged. there reason to believe offense Nor is robbery, prove evidence,regarding admitted aggravating respondent’s trial, in would not have been factor simple murder. Like the Federal a trial for admitted the introduc- Evidence, Ohio’sevidence code allows Rules of “proof motive, of other crimes to show tion of evidence knowledge, identity, preparation, plan, opportunity, intent, 404(B); Rule Evid. or absence of mistake or accident.” Ohio 404(b). Fed. Rule Evid. The murder this case see also robbery. flight was committed while from the bank theory respondent accomplice is that murdered his State’s prosecu- escape him order to silence so that could robbery hoped, pick up he return later to and, tion for the money consequently is no the stolen he had hidden. There robbery apparent why not have reason evidence of the would opportunity been admissible to show motive and *17 murder. spell obligated to out with this, all
Given might gone specificity himfor the trial have better some how charged only simple He has not done murder. had the State things simply speculated that all sorts instead, he has so; enough prevent might That is not have been different. error] [the “declaring] this Court from a belief
257 beyond Chapman, 386 S., a reasonable doubt.” U. harmless Maryland, in Benton 395 24. If it the remand v. were, at (1969), inappropriate: 784 would have been U. S. simply burglary be- conviction, there would have vacated happened telling had the cause there was no what would have against the lar- not been forced to defend himself defendant ceny charge. Perhaps have different trial tactics would been prepared perhaps defense counsel would have more tried; burglary charge. specula- fully Indéed, abstract on the sufficed to create a “reasonable doubt” that tions of this sort harmless, it is difficult to see how constitu- error qualify. tional error ever would although judgment, I in I see therefore concur the Court’s justification departing no for from the traditional estab- deciding questions of this kind. lished standards for Brennan, Justice dissenting. robbery, respond- charge aggravated to which
Both the charge aggravated pleaded guilty, subsequent ent and the episode. murder arose from the same criminal transaction prosecution for circumstances, In those Ohio’s subsequent Appeals’ reduction murder, and the Ohio Court my simple view, violated of that conviction to applicable prohibition Amendment, Fifth made through Benton v. Amendment, the Fourteenth the States (1969), person Maryland, that no shall be sub- 395 U. S. put jeopardy. ject I ad- offense to be twice for the same requires my Jeopardy Clause here to view that the Double present except extremely limited circumstances not against grow charges out of a a defendant that here, “all the episode, single or transaction” be act, occurrence, criminal prosecuted proceeding. Swenson, Ashe v. 397 U. S. one (1970) concurring). g., See, e. J., 453-454 (Brennan, (1982) (Brennan, J., Oklahoma, Brooks v. U. S. (1981) dissenting); S. 957 States, v. United U. Snell dissenting); Idaho, 449 U. S. Werneth v. J., (Brennan, (1981) dissenting); Thompson Oklahoma, J., (Brennan, *18 258 (1977) dissenting). Accord- J., 1053 U. S. (Brennan, reversing judgment the Dis-
ingly, below I would affirm Appeals re- of to the Court with directions Court, trict to issue with instructions the District Court mand the case to the writ. prosecution is view that a second even on the
However, permissible I case, of this would the circumstances under agree reasons stated his for the Blackmun Justice judgment, p. concurring opinion that re- ante, 248, in the spondent if demonstrate a a new trial he could is entitled to prejudiced. possibility” Ante, at that he was “reasonable post, agree at I also with Justice 255-256. Marshall, Appeals’ finding that standard has this 259, that the Court met should be sustained. been Marshall, dissenting.
Justice substantially I and II of the reasons stated Parts For thoughtful I concurrence, believe Blackmun’s Justice to conclude that was correct “ a ‘rea- was entitled to a new trial he could demonstrate by prejudiced’” possibility that he was double sonable Marshall, 158, 754 F. 2d violation, Mathews v. (CA6 1985) (quoting Smith, 1078, 602 F. 2d v. Graham (CA2 1979)). approach consistent with the This standard is uniformly this Court has taken when constitutional violations require ante, 250-253, at reversal, do not automatic see by wishing justified that a defendant the difficulties prejudice probability even the actual must face. show certainty [can] as to whether the “There never be actually unconstitutionally influenced scope reprosecution of the or whether the ac- broad strategy impaired scope defense cused’s charge, if there examina- even were most sensitive suspect more the entire trial record and a tion of inquest jurors still and avail- controversial alive Hetenyi Wilkins, 348 F. ex rel. able.” United States (CA2 1965), 2d nom. cert. denied sub Mancusi *19 (1966). Hetenyi, v. 913 U. S. any danger particular
The mere a absence of in case that bringing charge jeopardy-barred compro- in of a a resulted g., Georgia, mise e. Price verdict, see, U. S. (1970);Hetenyi, supra, adopting is no reason for a different determining standard for whether a is defendant entitled to a By impermissibly expanding scope new trial. prosecution, may exposed the double violation have dangers defendant to of another serious sort. dangers by respondent
ofOne faced here was that evi- (indeed, might dence that would not have been admitted not offered) simple even have been had he tried for been murder prosecution brought jeopardy- in came because the had charge Appeals barred murder. The Court respondent’s reversed conviction because it found that such “may otherwise inadmissible evidence been had admitted and prejudiced regard findings have with to its as to intent and act itself.” 754 F. 162. 2d, at Unlike why Ap- see no reason the Court of Justice I Blackmun, peals required should reconsider its conclusion prejudiced. question sowas On such a of state evidentiary judges regularly law, “the federal who deal questions respective of state law in their districts and circuits position in are a better than we to determine how local courts dispose comparable issues,” would Butner v. United States, S. 48, And, U. the absence of gave anything indication that the less than question full its attention to the whether certain evidence simple fact came would have been inadmissible majority’s I trial, believe that the decision to remand thorough case for a “more consideration the lower disingenuous ante, court” of at issue, at best.