Cite as: 512 U. S. 1 (1994)
Ginsburg, J., dissenting
of the death sentence for the instant offense").4 Accordingly, I do not read Justice O Connor's concurring opinion as narrowing the Court's Caldwell holding with respect to the issue this case presents. Nor, for reasons set out in the margin, do I agree with the Court that several post-Caldwell cases, beginning with Darden v. Wainwright, 477 U. S. 168 (1986), confirm the narrow interpretation of Caldwell the Court announces today. See ante, at 9.5
Finally, the Court relies, as did the Oklahoma Court of Criminal Appeals, on the trial court's instruction to the jurors that " '[t]he importance and worth of the evidence is for you to decide,' " together with the court's disavowal of any
4 In its merits brief before this Court, but not in its state-court brief or in its brief in opposition to the petition for certiorari, the State of Oklahoma has argued that the evidence of Romano's prior sentence may have been relevant. This belated argument does not persuade. The only authority the State cites holding that a prior death sentence may be relevant evidence at sentencing is Commonwealth v. Beasley, 505 Pa. 279, 288, 479 A. 2d 460, 465 (1984); that case decided, purely as a matter of state statutory construction, that the term "conviction" could be taken to include the sentence imposed for an earlier conviction.
5 In Darden, the Court rejected a Caldwell challenge to a prosecutor's comments at the guilt phase of a capital trial. The Court observed that the fact that the prosecutor did not make these comments at the penalty phase "greatly reduc[ed] the chance that they had any effect at all on sentencing." 477 U. S., at 183-184, n. 15. Further, unlike the "Judgment and Sentence" form in Romano's case, the comments made in Darden were not evidence, and the trial court told the jury so "several times." Finally, the Court concluded that the prosecutor's comments would have had, "[i]f anything, . . . the tendency to increase the jury's perception of its role," not diminish it. Ibid.
The Court also relies upon Dugger v. Adams, 489 U. S. 401, 407 (1989), and Sawyer v. Smith, 497 U. S. 227, 233 (1990). In Adams, the Court stated that "the merit of respondent's Caldwell claim is irrelevant to our disposition of the case." 489 U. S., at 408, n. 4. In Sawyer, the question the Court considered was not whether a Caldwell violation had occurred, but whether "Caldwell announced a new rule as defined by Teague v. Lane, 489 U. S. 288 (1989)," i. e., whether Caldwell "was . . . dictated by prior precedent existing at the time the [habeas petitioner's] conviction became final." 497 U. S., at 229, 235.
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