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(95-6510),
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[ Rehnquist ]
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Dissent
[ Stevens ]
Dissent
[ Ginsburg ]
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No. 95-6510


COLEMAN WAYNE GRAY, PETITIONER v. J. D. NETHERLAND, WARDEN

on writ of certiorari to the united states court of appeals for the fourth circuit

[June 20, 1996]

Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

Basic to due process in criminal proceedings is the right to a full, fair, potentially effective opportunity to defend against the State's charges. Petitioner Gray was not accorded that fundamental right at the penalty phase of his trial for capital murder. I therefore conclude that no "new rule" is implicated in his petition for habeas corpus, and dissent from the Court's decision, which denies Gray the resentencing proceeding he seeks.

Petitioner Coleman Gray's murder trial began on Monday, December 2, 1985, in the city of Suffolk, Virginia. He was charged with killing Richard McClelland during the commission of a robbery, a capital offense. Va. Code Ann. §18.2-31(4) (Supp. 1995). Under Virginia law, the trial would proceed in two stages: during the guilt phase, the jury would determine whether Gray was guilty of capital murder; and during the penalty phase, the jury would decide whether Gray should be sentenced to death or life imprisonment. See Va. Code Ann. §19.2-264.4(A) (1995).

At an in chambers conference before the guilt phase began, Gray's lawyers requested a court order directing

the prosecutor to disclose the evidence he would introduce during the penalty phase if Gray were convicted. [n.1] Defense counsel wanted to know, in particular, whether the prosecutor planned to introduce evidence relating to the murders of Lisa Sorrell and her 3 year old daughter, Shanta. Defense counsel informed the trial court of the basis for the request:

". . . Your Honor, this is my concern. We will probably at the very best stop in the middle of the day or late in the afternoon and start the penalty trial the next day. . . . [W]e have good reason to believe that [the prosecutor] is going to call people to introduce a statement that our client supposedly made to another inmate that he murdered [the Sorrells] which were very violent and well known crimes throughout this entire area.

"If that comes in we are going to want to know it in advance so we can be prepared on our argument. . . . It's absolute dynamite." 3 Joint Appendix in No. 94-4009 (CA4), pp. 1328-1329 (hereinafter J. A.).

The Sorrell murders "were one of the most highly publicized crimes in the history of the Tidewater, Virginia area." App. 341. In December 1984, five days after they were reported missing, Lisa and Shanta Sorrell were found dead in a partially burned car in Chesapeake, Virginia, a city that shares borders with Suffolk. Lisa's body was slumped in the front passenger seat of the car; she had been shot in the head six times. Shanta had been removed from her car seat and locked in the trunk, where she died after inhaling smoke produced by the fire in the car's passenger compartment. Neither Gray nor anyone else has ever been charged with commission of the Sorrell murders. [n.2]

In response to defense counsel's disclosure request, the prosecutor told Gray's lawyers and the court that he would introduce "statements" Gray had made to other inmates in which Gray allegedly admitted killing the Sorrells. The following exchange then took place between defense counsel Moore and prosecutor Ferguson:

"MR. MOORE: Is it going to be evidence or just his statement?

"MR. FERGUSON: Statements that your client made.

"MR. MOORE: Nothing other than statements?

"MR. FERGUSON: To other people, that's correct. Statements made by your client that he did these things." 3 J. A. 1331 (emphasis added).

After the in chambers conference ended, the guilt phase of the trial began. Three days later, at 4 o'clock on Thursday afternoon, December 5, the jury returned a verdict finding Gray guilty of the capital murder of McClelland. Proceedings were adjourned for the day, with the penalty phase to begin at 9:30 the next morning.

That evening, the prosecutor informed defense counsel that, in addition to Gray's statements, he planned to introduce further evidence relating to the Sorrell murders. That further evidence included: (1) the testimony of Detective Slezak, the police officer who investigated the Sorrell murders, regarding his observations at the crime scene shortly after the bodies of Lisa and Shanta were discovered; (2) graphic photographs of the crime scene, depicting the interior of the partially burned car, Lisa's body in the front seat, and Shanta's body in the trunk; (3) the testimony of Doctor Presswalla, the state medical examiner who conducted the autopsies of the victims, regarding the causes of their deaths; (4) graphic photographs of the victims at the time of the autopsies, including a photograph depicting the back of Lisa's head, shaved to reveal six gunshot wounds; and (5) Doctor Presswalla's autopsy reports. See App. 29-37, 40-47.

This additional evidence, advanced by the prosecutor on the eve of the penalty phase, suggested that the Sorrell murders were carried out in a manner "strikingly similar" to the murder of McClelland. Gray v. Commonwealth, 233 Va. 313, 347, 356 S. E. 2d 157, 176 (1987). Like Lisa Sorrell, McClelland had been shot six times in the head; his car, too, had been partially burned. As defense counsel later explained, "the similarities between the McClelland murder and the Sorrell murder would be obvious to anyone sitting in a jury box." App. 141.

On Friday morning, December 6, before trial proceedings resumed, defense counsel informed the court of Thursday evening's developments. Gray's lawyers told the court they had learned for the first time the previous evening that the prosecutor planned to introduce evidence relating to the Sorrell murders other than Gray's alleged statements. Counsel stated that while they were prepared to rebut the statements, they were "not prepared to rebut [the additional evidence] . . . because of the shortness of notice." 4 J. A. 2065. "We are not prepared to try the Sorrell murder today," counsel told the court. "We have not been given sufficient notice." Ibid.

Gray's lawyers argued that the case relied on by the prosecutor, Watkins v. Commonwealth, 229 Va. 469, 331 S. E. 2d 422 (1985), was distinguishable. There, counsel explained, separate murder charges were outstanding against the defendant, and "[t]he lawyers who were representing [Watkins] in the first murder trial were already representing him with respect to the second murders. They were aware of all the charges, were aware of the evidence that was available to the Commonwealth in the second murder charge and were in a position to confront the evidence . . . that would come in [during] the penalty trial." 4 J. A. 2065-2066. In contrast to the situation in Watkins, counsel pointed out, "[w]e are not prepared for any of this, other than [Gray] may have made some incriminating statements." 4 J. A. 2067. The trial court nonetheless ruled that the Sorrell murders evidence was "admissible at this stage of the trial." Id., at 2068.

The penalty phase of the trial then commenced. The prosecutor, in keeping with his representations before the guilt phase began, called Melvin Tucker to the stand. Tucker was Gray's accomplice in the McClelland murder; he, along with Gray, had initially been charged with capital murder. After plea negotiations, however, the prosecutor agreed to reduce the charge against Tucker to first degree murder, a noncapital offense, in exchange for Tucker's testimony against Gray. App. 339, and n. 3. Tucker testified during the guilt phase that Gray had been the "triggerman" in McClelland's murder.

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. [n.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 photographs and the victims' autopsy reports. See supra, at 4. During the defense case, Gray took the stand, admitted complicity in the McClelland murder but denied being the "triggerman," and denied any involvement in the Sorrell murders. App. 346-347. After closing arguments, in which the prosecutor highlighted the similarities between the Sorrell and McClelland murders, and urged that Gray's commission of the Sorrell murders demonstrated his "future dangerous[ness]," see id., at 51-53, the jury fixed Gray's punishment at death.

Gray unsuccessfully argued on direct appeal to the Virginia Supreme Court and in state habeas proceedings that admission of the additional Sorrell murders evidence violated his right to a fair trial under the Fourteenth Amendment. Gray then filed a federal habeas petition in the United States District Court for the Eastern District of Virginia. Gray argued, among other things, that admission of the Sorrell murders evidence violated his Fourteenth Amendment rights. 1 J. A. 35. Specifically, he asserted:

"The Commonwealth did not disclose its intentions to use the Sorrell murders as evidence against Gray until such a late date that it was impossible for Gray's defense counsel reasonably to prepare or defend against such evidence at trial. Because of the late notice, . . . Gray could not adequately prepare to defend his innocence regarding the Sorrell murders." Id., at 33.

The District Court concluded that other claims pressed by Gray in his federal habeas petition were either procedurally barred or meritless. The court found, however, that the Sorrell evidence claim "was consistently raised in the State courts and is not procedurally defaulted." Id., at 253.

After conducting an evidentiary hearing, the District Court granted Gray a writ of habeas corpus. Relying primarily on Gardner v. Florida, 430 U.S. 349 (1977), the court held that Gray's due process rights were violated "because the Commonwealth failed to provide fair notice that evidence concerning the Sorrell murders would be introduced at his penalty phase," App. 348; consequently, Gray became vulnerable to a death sentence on the basis of information he had scant opportunity to deny or explain, see id., at 349-351. Recalling the prosecutor's Monday morning affirmations that he would introduce only Gray's "statements," the District Court noted that Gray's lawyers were "clearly and justifiably . . . shocked" when the prosecutor reported, Thursday evening, his intention to introduce, the next day, further evidence on the Sorrell murders. Id., at 350. "The only Sorrell murder evidence which [Gray's lawyers] were prepared to challenge," the District Court recounted, "was the evidence [the prosecutor] indicated he would introduce at the outset of the trial: Melvin Tucker's statement that Gray allegedly had confessed to the murders." Id., at 346. The prosecutor's surprise move had disarmed Gray's counsel, the District Court recognized, leaving them without capacity to cross examine Detective Slezak and Doctor Presswalla effectively, with the result that the Sorrell murders evidence "carrie[d] no assurance of reliability." Id., at 351.

"The consequences of this surprise," the District Court found, "could not have been more devastating." Id., at 350. Most critically, the prosecutor's "statements only" assurance led defense counsel to forgo investigation of the details of the Sorrell murders, including a review of the evidence collected by the Chesapeake police department during its investigation of the crimes. See ibid. Had Gray's lawyers conducted such a review, they could have shown that none of the forensic evidence collected by the Chesapeake police directly linked Gray to the Sorrell murders. [n.4] Moreover, the evidence the Chesapeake police did obtain "strongly suggested that Timothy Sorrell"--Lisa's husband and Shanta's father--"actually committed the notorious murders." Id., at 350-351.

Indeed, for a substantial period of time following the Sorrell murders, Timothy Sorrell was the prime suspect in the case. [n.5] Police suspicion focused on Mr. Sorrell the night Lisa and Shanta were found dead. When Detective Slezak and another officer informed Mr. Sorrell of the grim discovery, his statements and demeanor made the officers "highly suspicious." Id., at 186. [n.6]

Police subsequently learned that Timothy Sorrell had an apparent motive for the murders. Two weeks before Lisa and Shanta were killed, the Sorrells obtained a life insurance policy, which designated Timothy and Shanta as beneficiaries in the event of Lisa's death. Id., at 344. [n.7] Lisa's parents later filed a lawsuit to stop Mr. Sorrell from obtaining the proceeds of the insurance policy, alleging that he was responsible for Lisa's death. Ibid. In addition, police uncovered evidence suggesting that Mr. Sorrell was involved in a stolen merchandise ring at his place of employment, the Naval Supply Center, and that Lisa "was very angry and unhappy about her husband's apparent criminal activities." Id., at 345. [n.8] Based on this information, Detective Slezak asked the local Commonwealth's Attorney "to determine whether it was appropriate to prosecute Timothy Sorrell." Ibid. [n.9]

Assessing the prejudicial potency of the Sorrell murders evidence admitted at the penalty phase of Gray's trial, the District Court concluded that the due process violation was not harmless. Id., at 353. The District Court therefore vacated Gray's death sentence, and remanded the case to the state trial court for resentencing.

The Court of Appeals for the Fourth Circuit reversed. Gray v. Thompson, 58 F. 3d 59 (1995). It held that federal habeas relief was barred because Gray's due process claim depended on a "new rule" of constitutional law which, under Teague v. Lane, 489 U.S. 288 (1989), could not be applied on collateral review. The Court of Appeals accordingly remanded the case, directing the District Court to dismiss Gray's habeas petition.

A case announces a "new rule" under Teague "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id., at 301 (plurality opinion). Gray's conviction became final in 1987, when we denied certiorari to review the Virginia Supreme Court's decision on direct appeal. See Gray v. Virginia, 484 U.S. 873 (1987). As explained below, precedent decided well before 1987 "dictates" the conclusion that Gray was not accorded due process at the penalty phase of his trial.

Gray's claim is encompassing, but it is fundamental. Under the Due Process Clause, he contends, a capital defendant must be afforded a meaningful opportunity to explain or deny the evidence introduced against him at sentencing. See Brief for Petitioner 45; Reply Brief for Petitioner 5. The District Court concluded that Gray was stripped of any meaningful opportunity to explain or deny the Sorrell murders evidence, for his lawyers were unfairly "ambushed"--clearly surprised and devastatingly disarmed by the prosecutor's decision, announced on the eve of the penalty trial, to introduce extensive evidence other than Gray's statements. App. 349-351. Gray's counsel reasonably relied on the prosecutor's unequivocal "statements only" pledge, see id., at 342, made at the outset of trial; based on the prosecutor's assurances, defense counsel spent no resources tracking down information in police records on the Sorrell murders. The prosecutor's switch, altogether unanticipated by defense counsel, left them with no chance to uncover, through their own investigation, information that could have defused the prosecutor's case, in short, without time to prepare an effective defense. Id., at 351.

The Fourth Circuit recast Gray's claim, transforming it into an assertion of a broad constitutional right to discovery in capital cases. See 58 F. 3d, at 64-65. This Court also restates and reshapes Gray's claim. The Court first slices Gray's whole claim into pieces; it then deals discretely with each segment it "perceive[s]," ante, at 9: a "misrepresentation" claim, ante, at 12-13; and a supposed "notice of evidence" claim, ante, at 13-17. Gray, himself, however, has "never claimed a constitutional right to advance discovery of the Commonwealth's evidence." Brief for Petitioner 46, n. 37, and accompanying text. His own claim is more basic and should not succumb to artificial endeavors to divide and conquer it.

There is nothing "new" in a rule that capital defendants must be afforded a meaningful opportunity to defend against the State's penalty phase evidence. As this Court affirmed more than a century ago: "Common justice requires that no man shall be condemned in his person or property without . . . an opportunity to make his defence." Baldwin v. Hale, 1 Wall. 223, 233 (1864). See also Windsor v. McVeigh, 93 U.S. 274, 277 (1876). A pro forma opportunity will not do. [n.10] Due process demands an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see In re Oliver, 333 U.S. 257, 275 (1948) (defendant must be afforded "a reasonable opportunity to meet [the charges against him] by way of defense or explanation"); Morgan v. United States, 304 U.S. 1, 18 (1938) ("The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them."). Absent a full, fair, potentially effective opportunity to defend against the State's charges, the right to a hearing would be "but a barren one." Ibid.; see Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) ("process which is a mere gesture is not due process").

In Gardner v. Florida, 430 U.S. 349 (1977), the principal decision relied on by the District Court, we confirmed that the sentencing phase of a capital trial "must satisfy the requirements of the Due Process Clause." Id., at 358 (plurality opinion). Gardner presented the question whether a defendant was denied due process when the trial judge sentenced him to death relying in part on a presentence report, including a confidential portion not disclosed to defense counsel. Counsel's deprivation of an "opportunity . . . to challenge the accuracy or materiality" of the undisclosed information, id., at 356, the Gardner plurality reasoned, left a manifest risk that "some of the information accepted in confidence may [have been] erroneous, or . . . misinterpreted," id., at 359. As a basis for a death sentence, Gardner teaches, information unexposed to adversary testing does not qualify as reliable. See ibid. The Gardner Court vacated the defendant's sentence, concluding that he "was denied due process of law when the death [penalty] was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Id., at 362.

Urging that Gardner fails to "dictate" a decision for Gray here, the Commonwealth relies on the Fourth Circuit's reasoning to this effect: Gardner was a case about "secrecy"; Gray's case is about "surprise." See 58 F. 3d, at 65. Therefore, Gray seeks an extension, not an application, of Gardner, see Brief for Respondent 30, in Teague parlance, a "new rule," Brief for Respondent 31. It would be an impermissible "leap," the Fourth Circuit maintained, to equate to a failure to disclose, a disclosure in fact made, "but allegedly so late as to be unfair." 58 F. 3d, at 65.

Teague is not the straight jacket the Commonwealth misunderstands it to be. Teague requires federal courts to decide a habeas petitioner's constitutional claims according to the "law prevailing at the time [his] conviction became final." Teague, 489 U. S., at 306 (plurality opinion) (internal quotation marks omitted). But Teague does not bar federal habeas courts from applying, in "a myriad of factual contexts," law that is settled--here, the right to a meaningful chance to defend against or explain charges pressed by the State. See Wright v. West, 505 U.S. 277, 309 (1992) (Kennedy, J., concurring in judgment) ("Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.").

The District Court did not "forg[e] a new rule," ibid., by holding, on the facts of this case, that Gray was denied a meaningful opportunity to challenge the Sorrell murders evidence. Ordinarily, it is incumbent upon defense counsel, after receiving adequate notice of the triable issues, to pursue whatever investigation is needed to rebut relevant evidence the State may introduce. Here, however, in keeping with the practice approved by Virginia's highest court, see supra, at 1-2, and n. 1, the prosecutor expressly delineated the scope and character of the evidence he would introduce with respect to the Sorrell murders: nothing other than statements Gray himself allegedly made, see supra, at 3. Gray's lawyers reasonably relied on the prosecutor's "statements only" assurance by forgoing inquiry into the details of the Sorrell crimes. Resource consuming investigation, they responsibly determined, was unnecessary to cast doubt on the veracity of inmate "snitch" testimony, the only evidence the prosecutor initially said he would offer.

Gray's lawyers were undeniably caught short by the prosecutor's startling announcement, the night before the penalty phase was to begin, that he would in effect put on a "mini trial" of the Sorrell murders. At that point, Gray's lawyers could not possibly conduct the investigation and preparation necessary to counter the prosecutor's newly announced evidence. Thus, at the penalty trial, defense counsel were reduced nearly to the role of spectators. Lacking proof, later uncovered, that "strongly suggested" Timothy Sorrell, not Gray, was the actual killer, App. 350-351, Gray's lawyers could mount only a feeble cross examination of Detective Slezak; counsel simply inquired of the detective whether highly publicized crimes could prompt "copycat" crimes, see id., at 37-40. Gray's lawyers had no questions at all for Doctor Presswalla, the medical examiner who testified about the Sorrell autopsies. Id., at 47. [n.11]

In sum, the record shows, beyond genuine debate, that Gray was not afforded a "meaningful" opportunity to defend against the additional Sorrell murders evidence. The fatal infection present in Gardner infects this case as well: defense counsel were effectively deprived of an opportunity to challenge the "accuracy or materiality" of information relied on in imposing the death sentence. Gardner, 430 U. S., at 356. Unexposed to adversary testing, the Sorrell murders evidence "carrie[d] no assurance of reliability." App. 351. The "debate between adversaries," valued in our system of justice for its contribution "to the truth seeking function of trials," Gardner, 430 U. S., at 360, was precluded here by the prosecutor's eve of sentencing shift, and the trial court's tolerance of it. To hold otherwise "would simply be to ignore actualities." Powell v. Alabama, 287 U.S. 45, 58 (1932). [n.12]

* * *

For the reasons stated, I conclude that the District Court's decision vacating Gray's death sentence did not rest on a "new rule" of constitutional law. I would therefore reverse the judgment of the Court of Appeals, and respectfully dissent from this Court's decision.

Notes

1 This request was made pursuant to Peterson v. Commonwealth, 225 Va. 289, 302 S. E. 2d 520 (1983), which instructed that, under Virginia law, the "preferred practice" in capital trials "is to make known to [the defendant] before trial the evidence that is to be adduced at the penalty stage if he is found guilty." Id., at 298, 302 S. E. 2d, at 526.

2 That Gray had not been convicted of killing the Sorrells would not, under Virginia law, bar admission of evidence relating to those crimes during the penalty phase of his trial. One of Virginia's two aggravating circumstances requires the jury to determine whether "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society." Va. Code Ann. §19.2-264.2 (1995). The Virginia Supreme Court has held that "evidence of prior unadjudicated criminal conduct . . . may be used in the penalty phase to prove the defendant's propensity to commit criminal acts of violence in the future." Watkins v. Commonwealth, 229 Va. 469, 488, 331 S. E. 2d 422, 436 (1985).

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.

4 The District Court noted, in this regard, that an investigator engaged by Gray's federal habeas counsel had run a driving test indicating that "Coleman Gray could not have performed the Sorrell murders on his wife's dinner hour, as the prosecutor speculated." Id., at 345, n. 5.

5 Police designated Mr. Sorrell as the sole suspect on evidence they sent to crime labs for analysis. Id., at 344.

6 Asked to describe what about Mr. Sorrell's demeanor made him suspicious, Slezak testified: "I don't know how to describe it other than to say that it was not what you would expect to find in a situation like that. He just seemed defensive." Id., at 186.

7 By contrast, police never established Gray's supposed motive for killing the Sorrells. Lisa was found with her jewelry (a necklace and gold earrings) undisturbed, as well as cash and a postal money order for $280.00, id., at 316, suggesting that robbery was not the perpetrator's motive, id., at 317.

8 Despite defense counsel's pretrial request for all exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the prosecutor never disclosed the evidence incriminating Timothy Sorrell. Gray presented a Brady claim in his federal habeas petition, but the District Court noted that the claim had not been raised in state court, and therefore held it procedurally barred. 1 J. A. 194.

9 After Gray's trial, the local prosecutor reportedly stated in an affidavit that Mr. Sorrell was no longer a suspect. See 2 id., at 927 (news report in The Virginian Pilot, Jan. 7, 1986, p. D1).

10 Cf. In re Gault, 387 U.S. 1, 33 (1967) (notice to parents the night before a juvenile delinquency hearing was constitutionally inadequate; due process requires that notice "be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded"); Powell v. Alabama, 287 U.S. 45, 58 (1932) (defense counsel appointed the morning of trial could not satisfy the constitutional requirement because counsel lacked opportunity to investigate the case; Court observed that "[t]o decide otherwise, would simply be to ignore actualities").

11 The Court attaches weight to the failure of Gray's lawyers to ask explicitly for deferral of the penalty phase. See ante, at 14, 16. It is uncontested that defense counsel made no formal motion for a continuance. But as the District Court described the morning of trial episode, counsel "plea[ded] for additional time to prepare." App. 343. And as earlier noted, see supra, at 4-5, counsel was explicit about the dilemma confronting the defense: "We are not prepared to try the Sorrell murder today." 4 J. A. 2065. The Court's suggestion that "this plea [was] insufficient to have legal effect in court," ante, at 14, n. 4, is puzzling. Neither the Court, the Fourth Circuit, nor the Commonwealth has cited any Virginia authority for this proposition. Cf. Smith v. Estelle, 602 F. 2d 694, 701, n. 8 (CA5 1979) ("the state points us to no rule of Texas law saying that moving for a continuance is the only way to object to surprise"), aff'd on other grounds, 451 U.S. 454 (1981). Given the potency of the evidence in question, it is difficult to comprehend the Court's speculation that defense counsel, for "tactical" reasons, may have wanted only exclusion and not more time. Compare ante, at 16, with Tr. of Oral Arg. 11 (Counsel for Petitioner urged that if a trial judge is asked, "please stop this from happening . . . , it violates my [client's] right to a fair trial," the existence of that right should not turn on whether counsel next says, "please exclude this evidence, as opposed to please give me more time").

12 Weatherford v. Bursey, 429 U.S. 545 (1977), featured by the Court, see ante, at 15, 16-17, hardly controls this case. There, the State's witness, and not the prosecutor, misled defense counsel. 429 U. S., at 560. Furthermore, Weatherford did not involve the penalty phase of a capital trial, a stage at which reliability concerns are most vital. Finally, the defendant in Weatherford did not object at trial to the surprise witness, and did not later show how he was prejudiced by the surprise. Id., at 561.