US SUPREME COURT DECISIONS

Petitioner was convicted in a Mississippi court of murder. Finding the existence of three aggravating circumstances and that such circumstances outweighed the mitigating circumstances, the jury sentenced petitioner to death. The sole evidence supporting one of the aggravating circumstances -- that petitioner had been "previously convicted of a felony involving the use or threat of violence to [another] person" -- consisted of an authenticated copy of his commitment to prison in 1963 following his New York conviction of second-degree assault with intent to commit first-degree rape. The prosecutor repeatedly referred to the commitment document at the sentencing hearing. After the Mississippi Supreme Court affirmed petitioner's death sentence, the New York Court of Appeals reversed the 1963 conviction. However, the Mississippi Supreme Court denied petitioner's motion for postconviction relief from the death sentence, arguing, inter alia, that (1) petitioner had waived his right to challenge the New York conviction by not raising the point on direct appeal of his death sentence; (2) Mississippi's capital sentencing procedures could be rendered capricious and standardless if the post-sentencing decision of another State could invalidate a Mississippi death sentence; and (3) the New York conviction provided adequate support for the death penalty even if it was invalid, since petitioner had served time on the conviction.

Held: By allowing petitioner's death sentence to stand despite the fact that it was based in part on the vacated New York conviction, the Mississippi Supreme Court violated the Eighth Amendment's prohibition against cruel and unusual punishment. Pp. 486 U. S. 584-590.

(a) The New York conviction did not provide any legitimate support for petitioner's sentence. Its reversal deprives the prosecutor's sole piece of evidence as to the aggravating circumstance of any relevance to the sentencing decision. The fact that petitioner served time in prison pursuant to an invalid conviction does not make the conviction itself relevant, or prove that petitioner was guilty of the crime. Furthermore, use of the New York conviction in the sentencing hearing was clearly prejudicial, since the prosecutor repeatedly urged the jury to give it chanrobles.com-red

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weight in connection with its assigned task of balancing aggravating and mitigating circumstances "one against the other." Pp. 486 U. S. 585-586.

(b) The state court's concern that its vacatur of the death sentence here would render its capital sentencing procedures capricious is unfounded. That court has itself held that the reversal of a Kentucky conviction supporting an enhanced sentence under Mississippi's habitual criminal statute justified postconviction relief. Phillips v. State, 421 So.2d 476. A rule that regularly gives a defendant the benefit of such relief is not even arguably arbitrary or capricious and, in fact, reduces the risk that a capital sentence will be imposed arbitrarily. Pp. 486 U. S. 586-587.

(c) The state court's conclusion that petitioner's failure to raise his claim on direct appeal constitutes a procedural bar under state law does not prevent this Court from considering the claim. Under federal law, such a bar can constitute an adequate and independent state ground for affirming a sentence only if it has been consistently or regularly applied. The bar raised here has not been so applied in Mississippi. In Phillips v. State, supra, the Mississippi Supreme Court held that collateral attack, rather than direct appeal, was the appropriate means of challenging a prior conviction used to enhance a habitual offender's sentence, and the Mississippi Supreme Court recently has applied that reasoning to facts substantially similar to those presented in this case. See Nixon v. State, 533 So.2d 1078. Pp. 486 U. S. 587-589.

(d) The State's argument that the decision below should be affirmed because the state court did not mention the New York conviction when it conducted its proportionality review of the death sentence on direct appeal is without merit, since the fact that the sentence might be consistent with Mississippi law, even absent evidence of the New York conviction, is not determinative here. The error here extended beyond the mere invalidation of an aggravating circumstance supported by otherwise admissible evidence, since the jury was allowed to consider evidence that has been revealed to be materially inaccurate. Moreover, the state court's express refusal to rely on harmless error analysis in upholding petitioner's sentence was plainly justified on the facts of this case. Pp. 486 U. S. 589-590.

511 So.2d 1333, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J.,and BRENNAN, WHITE, MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 486 U. S. 591. WHITE, J., filed a concurring opinion, in which REHNQUIST, C.J.,joined, post, p. 486 U. S. 591. O'CONNOR, J., concurred in the judgment. chanrobles.com-red

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