# Chambers v. Mississippi (410 U.S. 284)/Concurrence White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinion Rehnquist
[p303] MR. JUSTICE WHITE, concurring.
We would not ordinarily expect an appellate court in the state or federal system to remain silent on a constitutional issue requiring decision in the case before it. Normally, a court's silence on an important question would simply indicate that it was unnecessary to decide the issue because it was not properly before the court or for some other reason. As my Brother REHNQUIST points out, the Court stated in Street v. New York, 394 U.S. 576, 582 (1969), that "when... the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary."
Under this rule it becomes the petitioner's burden to demonstrate that under the applicable state law his claim was properly before the state court and was therefore necessarily rejected, although silently, by affirmance of the judgment. If he fails to do so, we need not entertain and decide the federal question that he presses.
It is not our invariable practice, however, that we will not ourselves canvass state law to determine whether the federal question, presented to but not discussed by the state supreme court, was properly raised in accordance with state procedures. The Court surveyed state law in Street, itself, with little if any help from the appellant; and I think it is appropriate here where the State does not contest our jurisdiction and seemingly [p304] concedes that the question was properly raised below and necessarily decided by the Mississippi Supreme Court.
There is little doubt that Mississippi ordinarily enforces a rule of contemporaneous objection with respect to evidence; the three opinions in Henry v. State, 253 Miss. 263, 154 So.2d 289 (1963); 253 Miss. 183, 174 So.2d 348 (1965); 198 So.2d 213 (1967), make this sufficiently clear. Also, that case came here, and we not only noted the existence of the rule but recognized that it served a legitimate state interest. Henry v. Mississippi, 379 U.S. 443 (1965). The same rule obtains where the proponent of evidence claims error in its exclusion:
   "The rejection of evidence not apparently admissible is not error, in the absence of an offer or sufficient statement of the purpose of its introduction, by which the court may determine its relevancy or admissibility.... This Court has consistently followed this rule requiring definiteness and sufficiency of an offer of proof...." Freeman v. State, 204 So.2d 842, 847-848 (1967) (dissenting opinion).
There are Mississippi cases stating that in proper circumstances the contemporaneous-objection rule will not be enforced and that the State Supreme Court in some circumstances will consider an issue raised there for the first time. In Carter v. State, 198 Miss. 523, 21 So.2d 404 (1945), the only issue in the appellate court concerned appellant's mental condition at the time of the crime, an issue not raised at trial. The court said "[t]he rule that questions not raised in the trial court cannot be raised for the first time on appeal, is not without exceptions, among which are errors 'affecting fundamental rights of the parties... or affecting [p305] public policy,'... if to act on which will work no injustice to any party to the appeal." Id., at 528, 21 So.2d, at 404. The court proceeded to consider the issue. In Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950), a convicted defendant asserted in the State Supreme Court for the first time the inadmissibility of certain evidence on the grounds of an illegal search and seizure, violation of the rule against self-incrimination, and improper cross-examination. The court considered these questions and reversed the conviction, saying that "[e]rrors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal.... [W]here fundamental and constitutional rights are ignored, due process does not exist, and a fair trial in contemplation of law cannot be had."
The reach of these cases was left in doubt when, in affirming the judgment in Henry v. State, 253 Miss. 263, 154 So.2d 289 (1963), the Mississippi Supreme Court refused to consider a claim of illegally obtained evidence because the matter had not been presented to the trial court. The case did not come within Brooks v. State, supra, the court ruled, because Henry's counsel were experienced and adequate, and Henry was bound by their mistakes. This Court vacated that judgment and remanded for determination whether there had been a deliberate bypass, reading Mississippi law as extending no discretion to give relief from the contemporaneous-objection rule where "petitioner was represented by competent local counsel familiar with local procedure." Henry v. Mississippi, 379 U.S., at 449 n. 5. In its initial opinion on remand, the Supreme Court of Mississippi reasserted the necessity to object at the time testimony is offered in the trial court, but it said "[n]evertheless if it appears to the trial judge that the [p306] foregoing rule of procedure would defeat justice and bring about results not justified or intended by substantive law, the rule may be relaxed and subordinated to the primary purpose of the law to enforce constitutional rights in the interest of justice." Henry v. State, 253 Miss., at 287, 174 So.2d, at 351.
In King v. State, 230 So.2d 209, 211 (1970), this statement from the 1965 Henry opinion was interpreted as giving the Supreme Court of the State, as well as the trial court, sufficient latitude to treat the request for a peremptory instruction to the jury after failure to object to the introduction of allegedly illegally obtained evidence as if the appellant had made timely objection.
Moreover, in Wood v. State, 257 So.2d 193, 200 (1972), where a convicted defendant complained of a wide-ranging and allegedly unfair cross-examination of defense witnesses, and where there had been a failure to object to part of the prejudicial inquiry, the State Supreme Court nevertheless considered the question, stating: "We note also that no objection was made to the testimony of Donald Ray Boyd when he was asked whether he had ever been in jail. However, it was stated in Brooks, supra, that in extreme cases a failure to object to questions which were violative of a constitutional right did not in all events have to be objected to before they would receive consideration by this Court. The appellant in this case was being tried for murder. The evidence of defendant's guilt was extremely close. A shred of evidence one way or the other could have been persuasive to the jury. In our opinion, this warrants our [p307] consideration of the questions and responses to which repeated objections were made and sustained by the court, as well as the consideration of the testimony of Donald Ray Boyd wherein he was asked whether he had been in jail or not though no formal objection was made thereto."
These cases seemingly preserve some aspects of the Brooks rule, and hence anticipate some situations where the contemporaneous-objection requirement will not be enforced, despite Henry. There will be occasions where the Supreme Court of Mississippi will consider constitutional claims made in that court for the first time.
Where this leaves the matter of our jurisdiction in the light of decisions such as Williams v. Georgia, 349 U.S. 375 (1955), is not clear. There, while acknowledging that motions for a new trial after final judgment were not favored in Georgia, the Court recognized that such motions had been granted in "exceptional" or "extraordinary" cases, their availability being within the well-informed discretion of the courts. It was claimed that denying Williams' motion was an adequate state ground precluding review here, but "since his motion was based upon a constitutional question, and one the validity of which has in principle been sustained here, the discretionary decision to deny the motion does not deprive this Court of jurisdiction to find that the substantive issue is properly before us." Id., at 389.
In the circumstances before us, where there were repeated offers of evidence and objections to its exclusion, although not on constitutional grounds, where the matter was presented in federal due process terms to the State Supreme Court and where the State does not now deny that the issue was properly before the state court and could have been considered by it, I am inclined, although [p308] dubitante, to conclude with the Court that we have jurisdiction.
As to the merits, I would join in the Court's opinion and judgment.

## Notes

* ↑ The trial court on remand from the 1965 Henry decision, 253 Miss. 283, 174 So.2d 348, found there had been deliberate bypass, and, affirming on appeal, 198 So.2d 213 (1967), the Mississippi Supreme Court did not mention Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950), or the rule for like cases.