SUPREME COURT OF THE UNITED STATES
379 U.S. 443
Henry v. Mississippi
Argued: October 13, 1964
Decided: January 18, 1965
See 380 U.S. 926, 85 S.Ct. 878.
Barbara A. Morris, New York City, for petitioner.
G. Garland Lyell, Jr., Jackson, Miss., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
Mr. Justice BLACK, dissenting.
Petitioner contends that his conviction was based in part on evidence obtained by an allegedly unlawful search in violation of the United States Constitution. I would decide this federal question here and now. I do not believe that the Mississippi procedural trial rule relied on by the State can shut off this Court’s review, nor do I find a particle of support for the Court’s suggestion that petitioner knowingly waived his right to have this constitutional question decided by the state trial court.
As far as the issue of waiver is concerned, I agree with the Mississippi Supreme Court, which considered the failure to object one of the ‘honest mistakes’ which any lawyer might make,  since I believe that the record is completely barren of evidence to support a finding of a conscious and intentional waiver of petitioner’s due process right to have the trial court decide whether evidence used against him had been unconstitutionally seized. Therefore I would not remand for a hearing by the State Supreme Court or the trial court on the issue of waiver.  And even if I considered that a real issue of waiver had been shown and was properly before us, I would decide it here. I cannot agree to the Court’s judgment remanding the case to the state courts for a hearing on that issue alone, thereby giving the State a chance to supplement the trial record to save its conviction from constitutional challenge in a summary hearing before a court without a jury. This is the kind of piecemeal prosecution invented and used by this Court several years ago In United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234. I expressed my dissent from such an unjust, if not unconstitutional, fragmentizing technique in Shotwell, 355 U.S., at 246-252, 78 S.Ct. at 253-257, and again last year when the Court again applied it in Jackson v. Denno, 378 U.S. 368, dissenting opinion at 401, 409-410, 84 S.Ct. 1774, dissenting opinion at 1793, 1798-1799. See also Boles v. Stevenson, 379 U.S. 43, dissent noted at 46, 85 S.Ct. 174. I have the same objections to ‘Shotwelling’ the present case. And I do not think this dangerous Shotwelling device should be expanded so that the State may invoke it merely by challenging petitioner’s counsel here to deny knowledge of Mississippi’s procedural rule.
Nor do I believe that Mississippi’s procedural rule concerning the stage of a trial at which constitutional objections should be made is the kind of rule that we should accept as an independent, adequate ground for the State Supreme Court’s refusal to decide the constitutional question raised by petitioner. In Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, this Court held that where a State allows constitutional questions ‘to be raised at a late stage and be determined by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right.’  No Mississippi court opinions or state statutes have been called to our attention that I read as denying power of the State Supreme Court, should that court wish to do so, to consider and determine constitutional questions presented at the time this one was. In fact, as I understand counsel for the State, the Supreme Court of Mississippi does have power in its discretion to consider such questions regardless of when they are presented.  As that court has said most persuasively:
‘Constitutional rights in serious criminal cases rise above mere rules of procedure. * * * Errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal.’ Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97.
After stating this to be the rule it followed, and citing a number of its past decisions which stated and applied the same rule, the highest court of Mississippi, in the opinion quoted from, because of that rule reversed a conviction obtained through the use of unconstitutionally seized evidence, even though as in the present case there had been no objection made at the time the evidence was presented. The court noted that it had applied this same rule in other cases where proper objection had not been made at the trial, citing its holdings in Fisher v. State, 145 Miss. 116, 110 So. 361, and Carter v. State, 198 Miss. 523, 21 So.2d 404. In all of those cases the defendant appears to have been represented by local counsel. Yet this Court now apparently holds that the state court may, if it chooses to do so, depart from its prior cases and apply a new, stricter rule against this defendant and thereby prevent this Court from reviewing the case to see that his federal constitutional rights were safeguarded. I do not believe the cherished federal constitutional right of a defendant to object to unconstitutionally seized evidence offered against him can be cut off irrevocably by state-court discretionary rulings which might be different in particular undefined circumstances in other cases. I think such a procedural device for shutting off our review of questions involving constitutional rights is too dangerous to be tolerated.
For these reasons I dissent from the disposition of this case.
^1 154 So.2d 289, 296 (bound volume).
^2 I think that the very ‘evidence’ cited in the Court’s opinion points up the fact that there was no evidence from which it can be inferred that a conscious waiver was made. I can find no support, as the Court does, from an affidavit filed for the first time as an appendix to the State’s brief in this Court, stating that the district attorney who tried the case had seen one of petitioner’s counsel start to rise from his chair when the evidence from the search was introduced, but that another of petitioner’s counsel gave a ‘jerk on the coat tail’ of the lawyer, ‘returning him to his seat.’ It is hard for me to see how one could infer from this ‘jerk on the coat tail’ even a suspicion that petitioner had consciously and knowingly waived his right to object to the evidence offered against him.
^3 349 U.S. at 383, 75 S.Ct. at 819 (footnote omitted).
^4 The attorneys for the State of Mississippi have no doubt that the State Supreme Court has this power. When the case was argued before this Court, the following exchange took place between a Justice and counsel for the State:
‘Q. Does that mean there is a discretion in the (state) court where it can waive (a failure to object) if it sees fit under the circumstances?
‘A. It did so in that case I’m talking about (Brooks v. State, infra in text) where in several respects the defendant’s rights were just completely trampled.
‘Q. It means that it’s not an absolutely rigid, unbreakable, irrevocable rule?
‘A. That’s right. That’s right, your honor.
‘Q. And that the court can waive it if the circumstances in its judgment justify?
‘A. That’s correct.’