# Henry v. Mississippi (379 U.S. 443)/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinions Black Harlan
United States Supreme Court
379 U.S. 443
Henry v. Mississippi
Argued: Oct. 13, 1964. --- Decided: Jan 18, 1965
Petitioner was convicted of disturbing the peace, by indecent proposals to and offensive contact with an 18-year-old hitchhiker to whom he is said to have given a ride in his car. The trial judge charged the jury that 'you cannot find the defendant guilty on the unsupported and uncorroborated testimony of the complainant alone.' The petitioner's federal claim derives from the admission of a police officer's testimony, introduced to corroborate the hitchhiker's testimony. The Mississippi Supreme Court held that the officer's testimony was improperly admitted as the fruit of 'an unlawful search and was in violation of § 23, Miss. Constitution 1890.' 154 So.2d 289, 294. The tainted evidence tended to substantiate the hitchhiker's testimony by showing its accuracy in a detail which could have been seen only by one inside the car. In particular, it showed that the right-hand ash tray of the car in which the incident took place was full of Dentyne chewing gun wrappers, and that the cigarette lighter did not function. The police officer testified that after petitioner's arrest he had returned to the petitioner's home and obtained the permission of petitioner's wife to look in petitioner's car. The wife provided the officer with the keys, with which the officer opened the car. He testified that he tried the lighter and it would not work, and also that the ashtray 'was filled with red dentyne 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 the car did not waive petitioner's constitutional rights, and noted that the '(t)estimony of the State's witness * * * is, in effect, uncorroborated without the evidence disclosed by the inspection of defendant's automobile.' 154 So.2d, at 296 (advance sheet). Acting in the belief that petitioner had been represented by nonresident counsel unfamiliar with local procedure, the court reversed despite petitioner's failure to comply with the Mississippi requirement that an objection to illegal evidence be made at the time it is introduced. The court noted that petitioner had moved for a directed verdict at the close of the State's case, assigning as one ground the use of illegally obtained evidence; it did not mention petitioner's renewal of his motion at the close of all evidence.
After the first opinion was handed down, the State filed a Suggestion of Error, pointing out that petitioner was in fact represented at his trial by competent local counsel, as well as by out-of-state lawyers. Thereupon the Mississippi Supreme Court withdrew its first opinion and filed a new opinion in support of a judgment affirming petitioner's conviction. The new opinion is identical with the first save for the result, the statement that petitioner had local counsel, and the discussion of the effect of failure for whatever reason to make timely objection to the evidence. 'In such circumstances, even if honest mistakes of counsel in respect to policy or strategy or otherwise occur, they are binding upon the client as a part of the hazards of courtroom battle.' 154 So.2d, at 296 (bound volume). Moreover, the court reasoned, petitioner's cross-examination of the State's witness before the initial motion for directed verdict, and introduction of other evidence of the car's interior appearance afterward, 'cured' the original error and estopped petitioner from complaining of the tainted evidence. We granted certiorari, 376 U.S. 904, 84 S.Ct. 657, 11 L.Ed.2d 604. We vacate the judgment of conviction and remand for a hearing on the question whether the petitioner is to be deemed to have knowingly waived decision of his federal claim when timely objection was not made to the admission of the illegally seized evidence.
It is, of course, a familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, even where these judgments also decide federal questions. The principle applies not only in cases involving state substantive grounds, Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429, but also in cases involving state procedural grounds. Compare Herb v. Pitcairn, 324 U.S. 117, 125 126, 65 S.Ct. 459, 462-463, 89 L.Ed. 789 with Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143. But it is important to distinguish between state substantive grounds and state procedural grounds. Where the ground involved is substantive, the determination of the federal question cannot affect the disposition if the state court decision on the state law question is allowed to stand. Under the view taken in Murdock of the statutes conferring appellate jurisdiction on this Court, we have no power to revise judgments on questions of state law. Thus, the adequate nonfederal ground doctrine is necessary to avoid advisory opinions.
These justifications have no application where the state ground is purely procedural. A procedural default which is held to bar challenge to a conviction in state courts, even on federal constitutional grounds, prevents implementation of the federal right. Accordingly, we have consistently held that the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question. Cf. Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949. As Mr. Justice Holmes said:
'When as here there is a plain assertion of federal rights in the lower court, local rules as to how far it shall be reviewed on appeal do not necessarily prevail. * * * Whether the right was denied or not given due recognition by the (state court) * * * is a question as to which the plaintiffs are entitled to invoke our judgment.' Love v. Griffith, 266 U.S. 32, 33-34, 45 S.Ct. 12, 12, 69 L.Ed. 157.
Only last Term, we reaffirmed this principle, holding that a state appellate court's refusal, on the ground of mootness, to consider a federal claim, did not preclude our independent determination of the question of mootness; that is itself a question of federal law which this Court must ultimately decide. Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347. These cases settle the proposition that a litigant's procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State's insistence on compliance with its procedural rule serves a legitimate state interest. In every case we must inquire whether the enforcement of a procedural forfeiture serves such a state interest. If it does not, the state procedural rule ought not be permitted to bar vindication of important federal rights.
The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest. By immediately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration, and a reversal and new trial avoided. But on the record before us it appears that this purpose of the contemporaneous-objection rule may have been substantially served by petitioner's motion at the close of the State's evidence asking for a directed verdict because of the erroneous admission of the officer's testimony. For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action. For example, if there was sufficient competent evidence without this testimony to go to the jury, the motion for a directed verdict might have been denied, and the case submitted to the jury with a properly worded appropriate cautionary instruction. In these circumstances, the delay until the close of the State's case in presenting the objection cannot be said to have frustrated the State's interest in avoiding delay and waste of time in the disposition of the case. If this is so, and enforcement of the rule here would serve no substantial state interest, then settled principles would preclude treating the state ground as adequate; giving effect to the contemporaneous-objection rule for its own sake 'would be to force resort to an arid ritual of meaningless form.' Staub v. City of Baxley, 355 U.S. 313, 320, 78 S.Ct. 277, 281, 2 L.Ed.2d 302; see also Wright v. Georgia, 373 U.S. 284, 289-291, 83 S.Ct. 1240, 10 L.Ed.2d 349.
We have no reason, however, to decide that question now or to express any view on the merits of petitioner's substantial constitutional claim. For even assuming that the making of the objection on the motion for a directed verdict satisfied the state interest served by the contemporaneous-objection rule, the record suggests a possibility that petitioner's counsel deliberately bypassed the opportunity to make timely objection in the state court, and thus that the petitioner should be deemed to have forfeited his state court remedies. Although the Mississippi Supreme Court characterized the failure to object as an 'honest mistake,'154 So.2d at 296 (bound volume), the State, in the brief in support of its Suggestion of Error in the Supreme Court of Mississippi asserted its willingness to agree that its Suggestion of Error 'should not be sustained if either of the three counsel (for petitioner) participating in this trial would respond hereto with an affidavit that he did not know that at some point in a trial in criminal court in Mississippi that an objection to such testimony must have been made.' The second opinion of the Mississippi Supreme Court does not refer to the State's proposal and thus it appears that the Court did not believe that the issue was properly presented for decision. Another indication of possible waiver appears in an affidavit attached to the State's brief in this Court; there, the respondent asserted that one of petitioner's lawyers stood up as if to object to the officer's tainted testimony, and was pulled down by co-counsel. Again, this furnishes an insufficient basis for decision of the waiver questions at this time. But, together with the proposal in the Suggestion of Error, it is enough to justify an evidentiary hearing to determine whether petitioner 'after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures * * *.' Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837.
The evidence suggests reasons for a strategic move. Both the complaining witness and the police officer testified that the cigarette lighter in the car did not work. After denial of its motion for a directed verdict the defense called a mechanic who had repaired the cigarette lighter. The defense might have planned to allow the complaining witness and the officer to testify that the cigarette lighter did not work, and then, if the motion for directed verdict were not granted, to discredit both witnesses by showing that it did work, thereby persuading the jury to acquit. Or, by delaying objection to the evidence, the defense might have hoped to invite error and lay the foundation for a subsequent reversal. If either reason motivated the action of petitioner's counsel, and their plans backfired, counsel's deliberate choice of the strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here. Although trial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balkcom, 333 F.2d 496 (C.A.5th Cir. 1964), we think that the deliberate bypassing by counsel of the contemporaneous-objection rule as a part of trial strategy would have that effect in this case.
Only evidence extinsic to the record before us can establish the fact of waiver, and the State should have an opportunity to establish that fact. In comparable cases arising in federal courts we have vacated the judgments of conviction and remanded for a hearing, suspending the determination of the validity of the conviction pending the outcome of the hearing. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234; Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428. We recently adopted a similar procedure to determine an issue essential to the fairness of a state conviction. See Jackson v. Denno, 378 U.S. 368, 393-394, 84 S.Ct. 1774, 1788-1789; Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174. We think a similar course is particularly desirable here, since a dismissal on the basis of an adequate state ground would not end this case; petitioner might still pursue vindication of his federal claim in a federal habeas corpus proceeding in which the procedural default will not alone preclude consideration of his claim, at least unless it is shown that petitioner deliberately bypassed the orderly procedure of the state courts. Fay v. Noia, supra, 372 U.S. at 438, 83 S.Ct. at 848.
Of course, in so remanding we neither hold nor even remotely imply that the State must forgo insistence on its procedural requirements if it finds no waiver. Such a finding would only mean that petitioner could have a federal court apply settled principles to test the effectiveness of the procedural default to foreclose consideration of his constitutional claim. If it finds the procedural default ineffective, the federal court will itself decide the merits of his federal claim, at least so long as the state court does not wish to do so. By permitting the Mississippi courts to make an initial determination of waiver, we serve the causes of efficient administration of criminal justice, and of harmonious federalstate judicial relations. Such a disposition may make unnecessary the processing of the case through federal courts already laboring under congested dockets, or it may make unnecessary the relitigation in a federal forum of certain issues. See Townsend v. Sain, 372 U.S. 293, 312-319, 83 S.Ct. 745, 756-757, 9 L.Ed.2d 770. The Court is not blind to the fact that the federal habeas corpus jurisdiction has been a source of irritation between the federal and state judiciaries. It has been suggested that this friction might be ameliorated if the States would look upon our decision in Fay v. Noia, supra, and Townsend v. Sain, supra, as affording them an opportunity to provide state procedures, direct or collateral, for a full airing of federal claims. That prospect is better served by a remand than by relegating petitioner to his federal habeas remedy. Therefore, the judgment is vacated and the case is remanded to the Mississippi Supreme Court for further proceedings not inconsistent with this opinion.
It is so ordered.
Judgment vacated and case remanded.
Mr. Justice BLACK, dissenting.

## Notes

* ↑ The Mississippi Supreme Court wrote two opinions. The first is reported in the July 11, 1963, issue of the Southern Reporter advance sheets, 154 So.2d 289. This was withdrawn when the court filed the second opinion, which appears at the same page in the bound volume of the Southern Reporter. Citations hereinafter will designate the bound volume or the advance sheet if the cited material appears in only one opinion. The material referred to at this point in the text appears in both opinions.
* ↑ The complaining witness also testified as to the last four digits of petitioner's license plate, and to the fact that the first three digits were obscured; these facts were independently substantiated. Since the license plate could be seen from outside the car, and petitioner denied that the complaining witness had ever been in his car, the Mississippi Supreme Court apparently accepted the officer's testimony concerning the Dentyne wrappers and cigarette lighter as the only cogent corroborative evidence.
* ↑ This will not lead inevitably to a plethora of attacks on the application of state procedural rules; where the state rule is a reasonable one and clearly announced to defendant and counsel, application of the waiver doctrine will yield the same result as that of the adequate nonfederal ground doctrine in the vast majority of cases.
* ↑ The view of the Mississippi court in its first opinion seems to have been that there was insufficient evidence apart from the tainted testimony to support the conviction. Hence, appropriate corrective action as a matter of state law might have included granting petitioner's motion. We have not overlooked the fact that the first opinion remanded for a new trial, although the usual practice of the Mississippi Supreme Court where a motion for directed verdict, renewed at the close of all the evidence, is improperly denied is to dismiss the prosecution. See Lewis v. State, 198 Miss. 767, 23 So.2d 401; Adams v. State, 202 Miss. 68, 30 So.2d 593; Smith v. State, 205 Miss. 170, 38 So.2d 698. The opinion offers no explanation of the mandate; the answer is probably that the court refers only to the motion at the end of the State's case, 154 So.2d, at 294, 295, and overlooks the fact that it was renewed at the close of all the evidence, just as it overlooks the presence of local counsel. If the motion were not renewed, the appellate court could not dismiss the prosecution. See Smith v. State, supra.
* ↑ We do not rely on the principle that our review is not precluded when the state court has failed to exercise discretion to disregard the procedural default. See Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161. We read the second Mississippi Supreme Court opinion as holding that there is no such discretion where it appears that petitioner was represented by competent local counsel familiar with local procedure.
* ↑ Thus, consistently with the policy of avoiding premature decision on the merits of constitutional questions, we intimate no view whether the pertinent controlling federal standard governing the legality of a search or seizure, see Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, is the same as the Mississippi standard applied here, which holds that the wife's consent cannot validate a search as against her husband. Nor do we rule at this time on the question whether petitioner's cross-examination of the officer, before raising any objection, 'cured' the effect of the inadmissible testimony; this Court has not yet ruled on the role of harmless error in search and seizure cases. Cf. Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 953. Of course, nothing occurring after the judge's refusal to honor petitioner's objection could have this curative effect.
* ↑ The state court's holding that petitioner was estopped because his counsel brought up the question of the car's interior appearance on direct examination and cross-examination, see p. 446, supra, amounts to a holding that petitioner waived his federal right. In the absence of a showing that this was prompted by litigation strategy, the present record is insufficient to support such a holding. The cross-examination during the State's case, amounting to little more than a half-page in the printed record, adds little to petitioner's failure to make contemporaneous objection. The evidence brought in on direct examination was only after petitioner had moved for a directed verdict, pointing to the illegal evidence. This would scarcely support a finding of waiver.
* ↑ Habeas corpus petitions filed by state prisoners in federal district courts increased from 1,903 to 3,531, or 85.5%, from the 1963 to the 1964 fiscal year. Annual Report of the Director, Administrative Office of the United States Courts, p. 46 (1964); our own Miscellaneous Docket, where cases of state prisoners are primarily listed, continues to show substantial increases. The number has increased from 878 for the 1956 Term to 1,532 for the 1963 Term.
* ↑ See Meador, Accommodating State Criminal Procedure and Federal Postconviction Review, 50 A.B.A.J. 928 (October 1964). And see Brennan, Some Aspects of Federalism. 39 N.Y.U.L.Rev. 945, 957 959 (1964).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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