OCTOBER TERM, 2000
Syllabus
certiorari to the supreme court of tennessee
No. 99-6218. Argued November 1, 2000—Decided May 14, 2001
Following James Bowdery's death some 15 months after petitioner stabbed him, petitioner was convicted in Tennessee state court of second degree murder under the State's criminal homicide statute. Although that statute makes no mention of the common law "year and a day rule"—under which no defendant could be convicted of murder unless his victim died by the defendant's act within a year and a day of the act, see, e. g., Louisville, E. & St. L. R. Co. v. Clarke, 152 U. S. 230, 239— petitioner argued on appeal that the rule persisted as part of the State's common law and, as such, precluded his conviction. The Tennessee Court of Criminal Appeals disagreed and affirmed the conviction. In affirming, the State Supreme Court abolished the rule, finding that the reasons for recognizing the rule at common law no longer existed. The court disagreed with petitioner's contention that application of its decision abolishing the rule to his case would violate the Ex Post Facto Clauses of the State and Federal Constitutions, observing that those provisions refer only to legislative Acts. The court also concluded that application of its decision to petitioner would not run afoul of Bouie v. City of Columbia, 378 U. S. 347, 354, in which this Court held that due process prohibits retroactive application of any judicial construction of a criminal statute that is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue.
Held: The Tennessee Supreme Court's retroactive application to petitioner of its decision abolishing the year and a day rule did not deny petitioner due process of law in violation of the Fourteenth Amendment. Pp. 456-467.
(a) To the extent petitioner argues that the Due Process Clause incorporates the specific prohibitions of the Ex Post Facto Clause, he mis-reads Bouie. Bouie contains some dicta suggestive of the broad interpretation for which petitioner argues, see, e. g., 378 U. S., at 353-354, but the decision was rooted firmly in well established notions of due process. Its rationale rested on core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct, see, e. g., id., at 351, 352, 354-355. Subsequent decisions have not interpreted Bouie as extending so far as petitioner suggests, but have uniformly viewed Bouie
451
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