# Moore v. Illinois (408 U.S. 786)
## Concurrence/Dissent

    Marshall
Supreme Court of the United States
408 U.S. 786
Moore v. Illinois
Certiorari to the Supreme Court of Illinois
No. 69-5001. Argued: January 18, 1972 --- Decided: June 29, 1972
Moore, who was convicted of murder and sentenced to death for the shotgun slaying of a bartender at a Lansing, Illinois, tavern, claimed that he was denied a fair trial and due process because the State failed to make pretrial disclosure of several items of evidence helpful to the defense, failed to correct false testimony of one Powell, and succeeded in introducing into evidence a shotgun that was not the murder weapon. The evidence not disclosed consisted of a pretrial statement by one Sanders that Moore was known to him as "Slick" and that he had first met "Slick" some six months before the killing, and documents and testimony that established that Moore was not the man known to others in the area as "Slick." Powell testified that he observed the killing, and the State did not introduce into evidence a diagram that, Moore claims, illustrates that Powell could not see the shooting. The State Supreme Court rejected the claim that evidence had been suppressed and false evidence had been left uncorrected, and held that the shotgun was properly admitted into evidence as a weapon in Moore's possession when he was arrested and suitable for commission of the crime charged. Moore also attacked the imposition of the death penalty for noncompliance with the standards of Witherspoon v. Illinois, 391 U.S. 510.
Held:
    1. The evidentiary items (other than the diagram) on which Moore bases his suppression claim relate to Sanders' misidentification of Moore as "Slick" and not to the identification, by Sanders and others, of Moore as the person who made incriminating statements in the Ponderosa Tap. These evidentiary items are not material under the standard of Brady v. Maryland, 373 U.S. 83. The diagram does not support Moore's contention that the State knowingly permitted false testimony to remain uncorrected, in violation of Napue v. Illinois, 360 U.S. 264, since the diagram does not show that it was impossible for Powell to see the shooting. Pp. 794-798.
    2. Moore's due process claim as to the shotgun was not previously raised and therefore is not properly before this Court, and in any event the introduction of the shotgun does not constitute federally reversible error. Pp. 798-800.
    3. The sentence of death may not be imposed on Moore. Furman v. Georgia, ante, p. 238. P. 800.
42 Ill. 2d 73, 246 N.E. 2d 299, reversed in part and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which DOUGLAS, STEWART, and POWELL, JJ., joined, post, p. 800.
James J. Doherty argued the cause for petitioner. With him on the briefs was Gerald W. Getty.
Thomas J. Immel, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, Joel M. Flau, First Assistant Attorney General, and James B. Zagel and Jayne A. Carr, Assistant Attorneys General.
Briefs of amici curiae urging reversal were filed by Elmer Gertz and Willard J. Lassers for the American Civil Liberties Union, Illinois Division, et al., and by Jack Greenberg, James M. Nabrit III, Jack Himmelstein, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., et al.