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State v. Carter4/5/2005
redated Whitehorn, as support for its observation that appellate review of Carter's argument "flows logically from" the requirements of retroactivity. Does the Court mean that retroactivity law requires review of Carter's argument? If so, the Court should clearly state why that is so. If not, what precise basis is the Court advancing for its conclusion that we "are compelled" to take into account the "unique" circumstances of the appeal before us with respect to "the recent development in Confrontation Clause jurisprudence."
Perhaps the broadest--and most frightening--statement the Court makes in searching for a "way out" in the present case is the following:
t is evident that in the same way which we are not bound to render decisions based solely on the reasoning offered by appellate counsel, our review is not necessarily restricted by trial counsel's failure to preserve a specification of error for appeal.
No authority is cited for this statement. But a fair reading makes it clear that the Court intends to recognize no bounds in reaching an issue it wants to reach at any time and in any case. I suspect this unsupported statement will be quoted in future cases when the Court does not wish to conduct itself within any applicable parameters.
The Court having failed to set forth an adequate basis--from applicable cases--for its decision that Carter's appeal is presently before us, I dissent from its conclusion in that regard and would not address the issue raised.
KARLA M. GRAY
Justice Jim Rice joins in the foregoing dissenting opinion of Chief Justice Gray.
JIM RICE
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