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Miller v. State12/14/1989
ustice Marshall stated in dissent:
I agree with Justice STEVENS that the Court should not disturb the decision of the court below, and accordingly I join his dissent. I write separately to note my continuing belief that it is unfair to litigants and damaging to the integrity and accuracy of this Court's decisions to reverse a decision summarily without the benefit of full briefing on the merits of the question decided.
Justice Stevens then stated in dissent:
The Court explains why it reverses the decision of the Superior Court of Pennsylvania in this drunk driving case, but it does not explain why it granted certiorari.
Id. 109 S.Ct. at 207. See also Justice Marshall's dissents in Hildwin v. Florida, ___ U.S. ___, 109 S.Ct. 2055, 2057, 104 L.Ed.2d 728, reh'g denied ___ U.S. ___, 109 S.Ct. 3268, 106 L.Ed.2d 612 (1989) and Olden v. Kentucky, ___ U.S. ___, 109 S.Ct. 480, 484, 102 L.Ed.2d 513 (1988).
Although the California process may be more structured in written statutory criteria, the requirement and optimum goals for adequacy of appellate decision-making should not differ. The rule could be rationally stated:
"Before . . . a court of appeal . . . renders a decision . . . based on an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplementary briefing. If the court fails to afford such an opportunity, a rehearing shall be ordered upon timely petition of any party."
Adoption of Alexander S., 44 Cal.3d 857, 45 Cal.3d 207A, 245 Cal.Rptr. 1, 4, 750 P.2d 778, 782 (1988) (emphasis in original and quoting in part from a California statute). See a similar rebriefing process utilized in State v. McCall, 160 Ariz. 119, 770 P.2d 1165 (1989); Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 733 P.2d 1073, cert. denied 484 U.S. 874, 108 S.Ct. 212, 98 L.Ed.2d 177, reh'g denied 484 U.S. 972, 108 S.Ct. 477, 98 L.Ed.2d 414 (1987); Cole v. Delaware League for Planned Parenthood, Inc., 530 A.2d 1119 (Del.Super. 1987); and State v. Seward, 509 So.2d 413 (La. 1987).
The second reason for dissent is my continued conviction that the trier of fact should determine a defendant's fate only by the actual evidence of real events established by "the noble Anglo-American notion that we try cases rather than persons." Beaver and Marques, A Proposal to Modify the Rule on Criminal Conviction Impeachment, 58 Temp.L.Q. 585, 620 (1985). Because the prosecutor tried to introduce Miller's prior convictions en masse*fn3, little argument is needed to make good the claim that the prosecutor's purpose was to prejudice and inflame the jury to secure Miller's conviction. That the trial judge only permitted evidence of one prior conviction does not affect the prosecutor's purpose in seeking the introduction of the prior convictions en masse. If the jury might have thought the decision a close call after being exposed to the actual evidence of the real events, then Miller's past history could be available to tip the balance, although that history would have no relevance to his guilt or innocence to the crime for which he was on trial. This prosecutorial pattern is neither new nor fair. This follows in a course of recent developments where prejudicial non-relevance has become a formula for trial proof. See Pena v. State, 780 P.2d 316 (Wyo. 1989) (Urbigkit, J. dissenting).
More than a century ago, Oliver Wendell Holmes, Jr., then a Justice on the Supreme Judicial Court of Massachusetts, wrote in a civil case:
" hen it is proved that a witness has been convicted of a crime, the only ground for disbe
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