Wainwright v. Sykes

Mr. Justice Stevens,

concurring.

Although the Court’s decision today may be read as a significant departure from the “deliberate bypass” standard announced in Fay v. Noia, 372 U. S. 391 , I am persuaded that the holding is consistent with the way other federal courts have actually been applying Fay. 1 The notion that a client *95 must always consent to a tactical decision not to assert a constitutional objection to a proffer of evidence has always seemed unrealistic to me. 2 Conversely, if the constitutional issue is sufficiently grave, even an express waiver by the defendant himself may sometimes be excused. 3 Matters such *96 as the competence of counsel, the procedural context in which the asserted waiver occurred, the character of the constitutional right at stake, and the overall fairness of the entire proceeding, may be more significant than the language of the test the Court purports to apply. I therefore believe the Court has wisely refrained from attempting to give precise content to its “cause”-and-“prejudice” exception to the rule of Francis v. Henderson, 425 U. S. 536 . 4

In this case I agree with the Court’s holding that collateral attack on the state-court judgment should not be allowed. The record persuades me that competent trial counsel could well have made a deliberate decision not to object to the admission of the respondent’s in-custody statement. That statement was consistent, in many respects, with the respondent’s trial testimony. It even had some positive value, since it portrayed the respondent as having acted in response to provocation, which might have influenced the jury to return a verdict on a lesser charge. 5 To the extent that it was damaging, the primary harm would have resulted from its effect in impeaching the trial testimony, but it would have been admissible for impeachment in any event, Harris v. New *97 York, 401 U. S. 222 . Counsel may well have preferred to have the statement admitted without objection when it was first offered rather than making an objection which, at best, 6 could have been only temporarily successful.

Moreover, since the police fully complied with Miranda, the deterrent purpose of the Miranda rule is inapplicable to this case. Finally, there is clearly no basis for claiming that the trial violated any standard of fundamental fairness. Accordingly, no matter how the rule is phrased, this case is plainly not one in which a collateral attack should be allowed. I therefore join the opinion of the Court.

The suggestion in Fay, 372 U. S., at 439 , that the decision must be made personally by the defendant has not fared well, see United States ex rel. Cruz v. LaVallee, 448 F. 2d 671, 679 (CA2 1971); United States ex *95 rel. Green v. Bundle, 452 F. 2d 232, 236 (CA3 1971), although, a decision by counsel may not be binding if made over the objection of the defendant, Paine v. McCarthy, 527 F. 2d 173, 175-176 (CA9 1975). Courts have generally found a “deliberate bypass” where counsel could reasonably have decided not to object, United States ex rel. Terry v. Henderson, 462 F. 2d 1125, 1129 (CA2 1972); Whitney v. United States, 513 F. 2d 326, 329 (CA8 1974); United States ex rel. Broaddus v. Bundle, 429 F. 2d 791, 795 (CA3 1970), but they have not found a bypass when they consider the right “deeply embedded” in the Constitution, Frazier v. Roberts, 441 F. 2d 1224, 1230 (CA8 1971), or when the procedural default was not substantial, Minor v. Black, 527 F. 2d 1 , 5 n. 3 (CA6 1975); Black v. Beto, 382 F. 2d 758, 760 (CA5 1967). Sometimes, even a deliberate choice by trial counsel has been held not to be a “deliberate bypass” when the result wculd be unjust, Moreno v. Beto, 415 F. 2d 154 (CA5 1969). In short, the actual disposition of these cases seems to rest on the court’s perception of the totality of the circumstances, rather than on mechanical application of the “deliberate bypass” test.

“If counsel is to have the responsibility for conducting a contested criminal trial, quite obviously he must have the authority to make important tactical decisions promptly as a trial progresses. The very reasons why counsel’s participation is of such critical importance in assuring a fair trial for the defendant, see Powell v. Alabama, 287 U. S. 45, 68-69 , . . . make it inappropriate to require that his tactical decisions always be personally approved, or even thoroughly understood, by his client. Unquestionably, assuming the lawyer’s competence, the client must accept the consequences of his trial strategy. A rule which would require the client’s participation in every decision to object, or not to object, to proffered evidence would make a shambles of orderly procedure.” United States ex rel. Allum v. Twomey, 484 F. 2d 740, 744-745 (CA7 1973).

The test announced in Fay was not actually applied in that case. The Court held that habeas relief was available notwithstanding the client’s participation in the waiver decision, and notwithstanding the fact that the decision was made on a tactical basis. The client apparently feared that the State might be able to convict him even without the use *96 of his confession, and that he might be sentenced to death if reconvicted. See Fay, supra, at 397 n. 3, 440.

As Fay v. Noia, supra, at 438 , makes clear, we are concerned here with a matter of equitable discretion rather than a question of statutory authority; and equity has alwaj^s been characterized by its flexibility and regard for the necessities of each case, cf. Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 .

According to the statement the respondent made to the police, the victim came into his trailer, picked up his shotgun, and played with it; they quarreled and the victim cut the respondent’s hand with a knife; then the victim left the trailer and made an insulting gesture, at which time the respondent shot him. Other evidence established that respondent was quite drunk at the time. The primary difference between this and the respondent’s trial testimony was that at trial the respondent testified that the victim had threatened him before leaving the trailer, and had turned and started toward the respondent just before the shooting.

The objection was weak since the police officers gave the respondent the appropriate warnings. His claim that he was too intoxicated to understand the warnings is not only implausible, but also somewhat inconsistent with any attempt to give credibility to his trial testimony, which necessarily required recollection of the circumstances surrounding the shooting.