176
Ginsburg, J., dissenting
Tucker testified at the penalty phase that, shortly after the McClelland robbery, he and Gray "were searching through the newspaper for some information" on the crime. Id., at 22. According to Tucker, Gray stated that he had "knocked off" Lisa Sorrell, and pointed to a picture of Lisa Sorrell in the newspaper. Id., at 22-23.3 Gray's lawyers declined to cross-examine Tucker after his penalty phase testimony; in their view, Tucker's motive to lie had already been adequately exposed during the guilt phase. See id., at 157 (testimony of defense counsel Moore) ("Melvin Tucker had been . . . extensively . . . cross-examined during the guilt phase . . . . The same jurors who were sitting there during the guilt trial were there during the penalty phase and they had been told and drawn a pretty accurate picture as to why Melvin Tucker would strike a deal and tell anybody anything they wanted to hear. To save his life. That didn't need to be brought up again.").
The prosecutor then called Detective Slezak. Defense counsel renewed their objection, outside the presence of the jury, to admission of any evidence relating to the Sorrell murders other than Gray's statements. Counsel reiterated that they had "had no notice of this," and had been "taken by surprise." Id., at 25. What the prosecutor "is going to do today," they emphasized, "is not what he said he was going to do at the beginning of trial." Id., at 27. The court adhered to its earlier ruling that the evidence was admissible.
With nothing more than Tucker's testimony linking Gray to the Sorrell murders, the trial court then allowed the prosecutor to introduce the testimony of Detective Slezak and Doctor Presswalla, as well as crime scene and autopsy
3 As the District Court suggested, in one respect this version of events is implausible. The McClelland murder occurred in May 1985, some six months after the Sorrells had been killed. No newspaper from May 1985 containing a photograph of Lisa Sorrell was ever introduced into evidence. See App. 343.
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