John D. Arnold v. South Carolina. John H. Plath v. South Carolina, 467 U.S. 1265 (1984)

467 U.S.
1265
104 S.Ct. 3560
82 L.Ed.2d 862
John D. ARNOLD
v.
SOUTH CAROLINA. John H. PLATH v. SOUTH
CAROLINA.
No. 83-6567.
No. 83-6575.
Supreme Court of the United States

June 25, 1984.
Rehearing Denied Aug. 16, 1984.
On petitions for writs of certiorari to the Supreme Court of South

Carolina.
The petitions for writs of certiorari are denied.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
Petitioners were convicted of murder and sentenced to death. On appeal, the

convictions were affirmed but the sentences were reversed due to an improper
argument the prosecution made to the jury at the sentencing hearing. 277 S.C.
126, 284 S.E.2d 221 (1981). On remand, petitioners were again sentenced to
death. They challenge that sentence on the ground that the trial court erred by
allowing the jury to view the site of the murder without the presence of either
the defense or the prosecution attorneys and also by making no arrangements to
record what transpired at the jury-viewing. Petitioners claim that the trial
court's action denied them their right under the Sixth and Fourteenth
Amendments to effective assistance of counsel. Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
In rejecting petitioners' claim, the Supreme Court of South Carolina principally

relied upon Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674
(1934).* In Snyder this Court held that the Due Process Clause of the
Fourteenth Amendment was not violated by excluding a defendant from an onsite inspection by a jury. Snyder, however, is inapposite to the case at bar. First,
Snyder involved whether a defendant had the right to be present at an on-site
inspection by a jury. Here, the issue is whether a defendant had the right to
have his attorney present at such a viewing. Second, and more importantly, in
Snyder the defendant's attorney was present and participated, along with the
prosecutor, in directing the jury's attention to various aspects of the location
under inspection by the jury. Id., at 103-104, 54 S.Ct., at 331-332. Here, all
attorneys were excluded. Third, in Snyder, "everything that was said or done
was taken by the stenographer and made part of the record of the trial." Id., at
123-124, 54 S.Ct., at 338-339 (Roberts, J., dissenting). Here, no record was
made of what transpired at the inspection. The importance of a record is clearly
indicated in that portion of the Snyder opinion in which the Court criticized the
trial judge for having made an improper comment to the jury during the
inspection. Id., at 118, 54 S.Ct., at 337. Although this Court excused the trial
judge's impropriety as harmless, the pertinent point is that the Court was at
least able in Snyder to detect the trial judges's error and measure its severity. By
contrast, in this case the trial court's failure to preserve a record has effectively
nullified any sort of informed appellate review of the jury inspection.
3
It is doubtful, then, whether the trial court's actions in this case would even
have satisfied the standards prevailing at the time of Snyder, over 50 years ago.
Far more doubtful is whether the trial court's neglectful failures can satisfy
present constitutional standards. By excluding petitioners' attorneys from the
jury inspection, the trial court violated petitioners' right to counsel at every
critical stage of the proceedings against them. See, e.g., Estelle v. Smith, 451
U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (pretrial psychiatric
examination); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336
(1967) (sentencing); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18
L.Ed.2d 1149 (1967) (pretrial identification procedure). Furthermore, the trial
judge's failure to keep a record of the jury inspection contravenes this Court's
insistence that the unique nature of the death penalty demands uniquely
stringent policing of the factfinding process. See Beck v. Alabama, 447 U.S.
625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Godfrey v. Georgia, 446 U.S. 420,
100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Woodson v. North Carolina, 428 U.S.
280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
Because petitioners have raised substantial federal constitutional issues that take
on added urgency in light of the death sentences pending against them, I dissent
from the Court's denial of certiorari.
The State claims that petitioners' attorneys failed properly to object at trial to
their exclusion from the jury inspection. Although petitioners' attorneys do
appear to have adequately objected, the South Carolina Supreme Court's ruling
on the merits of the federal constitutional issue posed by petitioners removes
any procedural bar that might have existed even if counsel had failed to object.
See, e.g., Beecher v. Alabama, 389 U.S. 35, 37, n. 3, 88 S.Ct. 189, 190, n. 3, 19
L.Ed.2d 35 (1967) (ruling by state court on merits of federal constitutional
issue preserves issue for federal appellate review); Indiana ex rel. Anderson v.
Brand, 303 U.S. 95, 98, 58 S.Ct. 443, 445, 82 L.Ed. 685 (1938).

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467 U.S.

Supreme Court of the United States

On petitions for writs of certiorari to the Supreme Court of South

Petitioners were convicted of murder and sentenced to death. On appeal, the

In rejecting petitioners' claim, the Supreme Court of South Carolina principally

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