smith murray argued march decided june prior petitioner trial virginia state murder woman examined psychiatrist appointed request counsel examination psychiatrist asked petitioner murder prior incidents deviant sexual conduct petitioner stated tore clothes girl school bus deciding rape following jury trial petitioner convicted sentencing phase prosecution called psychiatrist stand defense objection described incident school bus evidence presented prosecution petitioner jury recommended death sentence appeal virginia petitioner raised number claims assign error concerning admission psychiatrist testimony counsel later explaining postconviction hearing decided pursue claim determining virginia case law support position time affirmed conviction sentence addressing issues concerning prosecution use psychiatric testimony rule errors assigned appellant considered exhausting state remedies petitioner sought writ habeas corpus federal district denied petition appeals affirmed held petitioner defaulted underlying constitutional claim admission psychiatrist testimony failing press virginia direct appeal murray carrier ante pp petitioner carried burden showing cause noncompliance virginia rules procedure deliberate tactical decision pursue particular claim antithesis kind circumstance warrant excusing defendant failure adhere state rules fair orderly disposition criminal cases counsel decision press claim question error magnitude rendered performance constitutionally deficient test strickland washington petitioner rely novelty claim cause noncompliance virginia rules appears various forms claim percolating lower courts years time petitioner original appeal pp clear record application cause prejudice test result fundamental miscarriage justice alleged constitutional error neither precluded development true facts resulted admission false ones thus even assuming legal matter psychiatrist testimony presented jury admission pervert jury deliberations concerning ultimate question whether fact petitioner constituted continuing threat society pp delivered opinion burger white powell rehnquist joined brennan filed dissenting opinion marshall joined ante stevens filed dissenting opinion marshall blackmun joined parts ii iii brennan joined post lloyd snook iii appointment argued cause petitioner briefs richard bonnie james kulp senior assistant attorney general virginia argued cause respondent brief william broaddus attorney general frank ferguson assistant attorney general briefs amici curiae urging reversal filed american psychiatric association et al joel klein joseph onek peter scheer american psychological association bruce ennis donald bersoff new jersey department public advocate linda rosenzweig justice delivered opinion granted certiorari decide whether circumstances prosecutor may elicit testimony mental health professional concerning content interview conducted explore possibility presenting psychiatric defenses trial also agreed review appeals determination error admission psychiatrist evidence case irrelevant holding zant stephens examination however conclude petitioner defaulted underlying constitutional claim failing press virginia direct appeal accordingly decline address merits petitioner claims affirm judgment dismissing petition writ habeas corpus following jury trial petitioner convicted may murder audrey weiler according confession petitioner encountered weiler secluded area near home raped knifepoint fearing testimony send back prison grabbed neck choked fell unconscious realized still alive dragged nearby river submerged head repeatedly stabbed knife subsequent medical examination indicated death attributable three clusters lethal injuries asphyxia strangulation drowning multiple stab wounds prior trial petitioner appointed counsel david pugh explored possibility presenting number psychiatric defenses towards end pugh requested trial appoint private psychiatrist wendell pile conduct examination petitioner aware psychiatric reports routinely forwarded reports admissible virginia law pugh advised petitioner discuss prior criminal episodes anyone app see gibson commonwealth although general advice intended apply forthcoming psychiatric examination pugh later testified specifically tell petitioner say anything doctor pile offense offenses app course examination pile fact ask petitioner murder prior incidents deviant sexual conduct tr state habeas hearing although petitioner initially declined answer later stated torn clothes girl school bus deciding carry original plan rape app information together tentative diagnosis sociopathic personality sexual deviation rape forwarded trial copies sent pugh prosecutor trying case commonwealth point prior interview pile inform petitioner statements might later used right remain silent counsel present desired cf estelle smith sentencing phase trial commonwealth called pile stand defense objection pile described incident school bus tr repeated earlier conclusion petitioner sociopathic personality examining second psychiatrist commonwealth introduced petitioner criminal record evidence revealed convicted rape paroled penitentiary charge less four months prior raping murdering weiler defense called character witnesses testified petitioner regular churchgoer member choir conscientious student high school good soldier vietnam lengthy deliberation jury recommended petitioner sentenced death petitioner appealed conviction sentence virginia brief raised separate claims including broad challenge constitutionality virginia death penalty provisions objections several trial evidentiary rulings challenge exclusion prospective juror voir dire petitioner however assign error concerning admission pile testimony subsequent state postconviction hearing pugh explained consciously decided pursue claim determining virginia case law support position particular time app various objections commonwealth use pile testimony raised however brief filed amicus curiae assistance project university virginia law school virginia affirmed conviction sentence respects smith commonwealth noted pursuant rule considered arguments advanced amicus concerned errors specifically assigned defendant accordingly address issues concerning prosecution use psychiatric testimony denied subsequent petition certiorari urge claim admission pile testimony violated petitioner rights federal constitution petitioner sought writ habeas corpus circuit city williamsburg county james city first time since trial argued admission pile testimony violated privilege fifth fourteenth amendments federal constitution ruled however petitioner forfeited claim failing press earlier proceedings subsequent evidentiary hearing conducted solely issue ineffective assistance counsel heard testimony concerning reasons underlying pugh decision pursue fifth amendment claim appeal basis testimony found pugh assistant researched question determined claim unlikely succeed thus found counsel exercised reasonable judgment deciding preserve objection appeal decision resulted informed professional deliberation app pet cert petitioner appealed denial habeas petition virginia contending circuit erred finding objection admission pile testimony defaulted declined accept appeal smith morris cxliii denied certiorari exhausted state remedies petitioner sought writ habeas corpus district eastern district virginia unpublished order denied petition holding objection admission pile testimony clearly barred decision wainwright sykes app reaching conclusion district judge noted default resulted trial attorney ignorance inadvertence deliberate tactical decision ibid appeals fourth circuit affirmed different grounds smith procunier finding unnecessary rely procedural default address merits substantive constitutional claim held admission pile testimony even erroneous basis invalidating petitioner sentence noted jury relied two distinct aggravating factors decision recommend death penalty psychiatric testimony however bore one factors likelihood petitioner constitute continuing serious threat society code tr circumstance appeals believed decision zant stephens required conclusion error irrelevant overall validity sentence granted certiorari smith sielaff affirm authority decision murray carrier ante ii virginia law failure raise claim direct appeal criminal conviction ordinarily bars consideration claim subsequent state proceeding see coppola warden virginia state penitentiary slayton parrigan present case virginia courts enforced rule declining consider petitioner objection admission pile testimony claim concededly included initial appeal conviction sentence consistent earlier intimations reed ross held murray carrier ante federal habeas must evaluate appellate defaults standards apply defendant fails preserve claim trial accordingly although federal courts times retain power look beyond state procedural forfeitures exercise power ordinarily inappropriate unless defendant succeeds showing cause noncompliance state rule actual prejudice resulting alleged constitutional violation wainwright sykes supra murray carrier ante explained fully carrier congruence standards appellate trial default reflects judgment concerns finality comity virtually identical regardless timing defendant failure comply legitimate state rules procedure need determine whether petitioner carried burden showing actual prejudice allegedly improper admission pile testimony think failed demonstrate cause noncompliance virginia procedures declined past essay comprehensive catalog circumstances justify finding cause reed ross supra see also wainwright sykes supra cases however leave doubt deliberate tactical decision pursue particular claim antithesis kind circumstance warrant excusing defendant failure adhere state legitimate rules fair orderly disposition criminal cases explained reed efense counsel may make tactical decision forgo procedural opportunity instance object trial raise issue appeal discovers tactic unsuccessful pursue alternative strategy federal encouragement conduct federal habeas corpus review offend generally accepted principles comity undermine accuracy efficiency state judicial systems detriment concerned procedural defaults nature therefore inexcusable qualify cause purposes federal habeas corpus review internal quotation citation omitted notwithstanding deliberate nature decision pursue objection pile testimony appeal course conduct virtually dispositive effort satisfy syke cause requirement petitioner contends default excused pugh decision though deliberate made ignorance investigated claim fully petitioner maintains inconceivable concluded claim without merit failed raise reply brief petitioner argument squarely foreclosed decision carrier holds mere fact counsel failed recognize factual legal basis claim failed raise claim despite recognizing constitute cause procedural default ante see also engle isaac supra seriously maintained decision press claim appeal error magnitude rendered counsel performance constitutionally deficient test strickland washington carrier reaffirmed right effective assistance counsel may particular case violated even isolated error error sufficiently egregious prejudicial ante see also cronic counsel deliberate decision pursue objection admission pile testimony falls far short meeting rigorous standard conducting vigorous defense guilt sentencing phases trial counsel surveyed extensive transcript researched number claims decided current state law worth pursuing direct appeal process winnowing weaker arguments appeal focusing likely prevail far evidence incompetence hallmark effective appellate advocacy jones barnes often case even informed counsel fail anticipate state appellate willingness reconsider prior holding underestimate likelihood federal habeas repudiate established state rule strickland washington made clear fair assessment attorney performance requires every effort made eliminate distorting effects hindsight reconstruct circumstances counsel challenged conduct evaluate conduct counsel perspective time viewed light virginia law time pugh submitted opening brief virginia decision pursue objection admission pile testimony fell well within wide range professionally competent assistance required sixth amendment federal constitution petitioner rely novelty legal claim cause noncompliance virginia rules see reed ross constitutional claim novel legal basis reasonably available counsel defendant cause failure raise claim accordance applicable state procedures petitioner contends decisions estelle smith ake oklahoma decided well affirmance conviction sentence direct appeal lend support position pile testimony excluded comparison reed engle makes plain question whether subsequent legal developments made counsel task easier whether time default claim available petitioner candidly conceded various forms claim advances percolating lower courts years time original appeal brief petitioner reply brief petitioner moreover case amicus virginia specifically argued admission pile testimony violated petitioner rights fifth sixth amendments brief assistance project university virginia law school amicus curiae pp circumstances simply open argument legal basis claim petitioner presses federal habeas unavailable counsel time direct appeal conclude therefore petitioner carried burden showing cause noncompliance virginia rules procedure determination however end inquiry noted engle reaffirmed carrier appropriate cases principles comity finality inform concepts cause prejudice must yield imperative correcting fundamentally unjust incarceration murray carrier ante quoting engle isaac supra accordingly constitutional violation probably resulted conviction one actually innocent federal habeas may grant writ even absence showing cause procedural default murray carrier ante acknowledge concept actual distinct legal innocence translate easily context alleged error sentencing phase trial capital offense nonetheless think clear record application cause prejudice test result fundamental miscarriage justice engle allegation testimony school bus incident false way misleading argued prospect pile might later testify effect foreclosing meaningful exploration psychiatric defenses concern real one abstract record clearly shows pile ask petitioner discuss crime stood accused committing well prior incidents deviant sexual conduct although initially reluctant ultimately petitioner forthcoming subjects short alleged constitutional error neither precluded development true facts resulted admission false ones thus even assuming legal matter pile testimony presented jury admission serve pervert jury deliberations concerning ultimate question whether fact petitioner constituted continuing threat society circumstances believe refusal consider defaulted claim federal habeas carries risk manifest miscarriage justice concur justice stevens suggestion displace established procedural default principles amorphous fundamental fairness inquiry post precisely parts constitution fundamental left future elaboration justice stevens defendant capital case raises substantial colorable constitutional claim federal entertain matter egregious violation state procedural rules regardless fairness opportunity raise claim course trial appeal post reject suggestion principles wainwright sykes apply differently depending nature penalty state imposes violation criminal laws similarly reject suggestion anything fundamentally unfair enforcing procedural default rules cases devoid substantial claim alleged error undermined accuracy guilt sentencing determination view profound societal costs attend exercise habeas jurisdiction exercise carries serious burden justification friendly innocence irrelevant collateral attack criminal judgments chi rev see also engle isaac supra alleged error unrelated innocence defendant represented competent counsel full fair opportunity press claim state system yet failed violation legitimate rule procedure burden carried accordingly affirm judgment appeals upholding dismissal petitioner application writ habeas corpus affirmed justice stevens justice marshall justice blackmun join justice brennan joins parts ii iii dissenting record case unquestionably demonstrates petitioner constitutional claim meritorious significant risk put death constitutional rights violated take issue conclusion willing assume petitioner fifth amendment right compelled violated eighth amendment right fair constitutionally sound sentencing proceeding violated introduction evidence fifth amendment violation constitutional violations made difference life death jury consideration fate although constitutional violations issues sufficiently serious decided grant certiorari although appeals fourth circuit decided issue merits concludes petitioner presumably meritorious constitutional claim procedurally barred petitioner must therefore executed opinion reach merits petitioner argument extent procedural default exceedingly minor perhaps kind harmless error petitioner counsel raised timely objection introduction evidence obtained violation fifth amendment respected friend university virginia law school assistance project brought issue attention virginia extensive amicus curiae brief smith counsel also raised issue state federal habeas corpus proceedings noted appeals decided case merits consistent principle appellate arguments carefully winnowed however smith counsel raise fifth amendment issue original appeal virginia unsurprising decision view fact governing virginia precedent entirely valid two years old decisively barred claim nevertheless finds lawyer decision include constitutional claim virtually dispositive ante offers remarkable explanation nder circumstances petitioner death penalty stand despite serious fifth eighth amendment violations played critical role determination death appropriate penalty believe refusal consider defaulted claim federal habeas carries risk manifest miscarriage justice ante fear lost way procedural maze creation grossly misevaluated requirements law justice federal statutory mission federal habeas corpus statute understand nature error necessary assess conclusion claim procedurally defaulted consider fifth amendment violation consider eighth amendment violation begin common ground historic office great writ ultimate protection fundamental unfairness well know mission reflected statutory requirement federal dispose matter law justice require equally clear application cause prejudice formulation rigid bar review fundamental constitutional violations support statute federal rule criminal procedure initially imported standard thus represents judicial lawmaking unabashed form nonetheless reaffirms today consistently held past federal courts retain power entertain federal habeas corpus requests despite absence cause prejudice ante question whether exercise power despite rigor standard moreover continues commit maintaining availability habeas corpus certain circumstances even absence cause ibid indeed term emphasized importance availability remanding case consider merits prisoner claim even though prisoner failed show cause default murray carrier ante concludes case miscarriage justice result refusal entertain smith challenge death sentence conclusion flawed three respects first mistakenly assumes claim implicating actual innocence rises level miscarriage justice second properly assess force claim death penalty invalid finally vastly exaggerates state interest refusing entertain claim accurately quotes holding murray carrier constitutional violation probably resulted conviction one actually innocent federal habeas may grant writ even absence showing cause procedural default ante seeks transfer actual innocence standard capital sentencing proceedings concludes petitioner sentencing hearing alleged constitutional error neither precluded development true facts resulted admission false ones ante explain however carrier clearly correct holding propriety writ case innocence must also limiting principle federal ability exercise statutory authority entertain federal habeas corpus actions specifically explain principle apply constitutional violation claimed resulted lack fundamental fairness either conviction death sentence analysis far removed traditional understanding habeas corpus instance moore dempsey considered claim murder convictions death sentences five black defendants unconstitutional federal district dismissed writ habeas corpus opinion justice holmes explained view allegations systematic exclusion blacks jury threatened mob violence federal district dismissed writ without considering factual allegations noted presence clear procedural default arkansas refused entertain challenge discrimination jury objection came late nevertheless held federal district entertained petition although allegations clearly implicated questions accuracy process opinion fairly read rest kind innocence inquiry propounds today specifically rejected notion inquiry presence serious constitutional violation actually inquiry guilt innocence petitioners petitioners say victim must killed whites rather black petitioners leave one side deal petitioners innocence guilt solely question whether constitutional rights preserved emphasis added today adopts converse justice holmes proposition leaves one side question whether constitutional rights preserved considers petitioner innocence guilt majority reformulation traditional understanding habeas corpus appears premised notion constitutional violations go guilt innocence sufficiently serious implicate fundamental fairness alluded engle isaac accuracy determination guilt innocence value criminal justice system analysis might great deal force accuracy value however many constitutional protections fifth amendment right compelled eighth amendment right cruel unusual punishment claims asserted petitioner irrelevant possibly counterproductive constitution however decision adopt accusatorial rather inquisitorial system justice reflect different choice choice afford individual certain protections right compelled right cruel unusual punishment among even rights necessarily implicate accuracy proceedings rather protections aspect fundamental fairness liberty individual dignity society affords even charged heinous crimes opinion exaltation accuracy characteristic fundamental fairness deeply flawed criminal justice system constitution protect values addition reliability guilt innocence determination statutory duty serve law justice similarly reflect values thus begins conception fundamental fairness far narrow conflicts nature criminal justice system similarly fails give appropriate weight fact capital punishment stake case well settled death different kind punishment may imposed country gardner florida stevens vital importance defendant community decision impose death sentence appear consequence scrupulously fair procedures condemned prisoner raises substantial colorable eighth amendment violation special obligation consistent statutory mission dispose matter law justice require consider whether prisoner claim render sentencing proceeding fundamentally unfair indeed precisely concern prompted appeals consider petitioner argument merits give weight consideration us matter life death imminent execution smith serves sufficient grounds review issue smith procunier finally every habeas corpus decision magnitude state interest must considered case several factors suggest state interest adequate obstruct federal habeas corpus consideration petitioner claim first petitioner made timely objection trial state interest enforcing procedural default rules trial far greater state interest enforcing procedural default rules appeal second issue raised state amicus curiae brief since matter courts ordinarily may exercise discretion discretionary decision address issue hardly rises state interest sufficient magnitude man die even though fifth eighth amendment rights violated achieve objective third issue presented state courts state habeas proceedings precedent blocking petitioner claim repudiated state habeas finding decision smith counsel raise issue governing virginia precedent squarely entirely reasonable concluded fifth amendment claim procedurally barred thus address fourth appeals fourth circuit addressed merits rest notion procedural default customarily defers federal courts appeals questions state law including questions cause failure comply state procedural rules finally importantly inadequacy state interest death penalty context decisively shown prevailing practice many appellate courts special duty capital cases overlook procedural defaults review trial record reversible error affirming severe sentences thus mistaken narrow definition fundamental fairness failure appreciate significance challenge death penalty exaggeration state interest refusing entertain claim raised trial appeal amicus state habeas proceedings addressed merits appeals briefed argued merits must assumed make difference life death disagree evaluation matters address merits petitioner argument constitutional violations render sentence death fundamentally unfair ii introduction petitioner comments psychiatrist clearly violated fifth amendment majority points psychiatric reports psychiatrists routinely forwarded admissible virginia law ante however point prior interview pile inform petitioner statements might later used right remain silent counsel present desired ante moreover psychiatrist related petitioner description earlier sexual assault letter prosecution well defense testified description state request petitioner capital sentencing hearing state thus relied pile testimony evidence future dangerousness one two aggravating circumstances found jury justify sentence death chief justice burger opinion estelle smith makes absolutely clear introduction evidence prosecution sentencing stage violated fifth amendment chief justice explained fifth amendment fully applies capital sentencing proceeding fifth amendment prevents criminal defendant made deluded instrument conviction culombe connecticut quoting hawkins pleas crown ed protects well made deluded instrument execution chief justice also explained prosecutorial use evidence psychiatric interrogation capital sentencing proceeding requires protections warnings accorded fifth amendment right contexts defendant voluntarily consent pretrial psychiatric examination informed right remain silent possible use statements state rely said psychiatrist establish future dangerousness thus use petitioner statements clearly violated fifth amendment view majority willingness assume constitutional violation present failure address affect fundamental fairness petitioner sentence moreover instructive recall importance fifth amendment right issue chief justice opinion estelle smith provides guidance miranda held prosecution may use statements whether exculpatory inculpatory stemming custodial interrogation defendant unless demonstrates use procedural safeguards effective secure privilege purpose admonitions combat saw inherently compelling pressures work person provide awareness fifth amendment privilege consequences forgoing prerequisite intelligent decision exercise fifth amendment privilege broad mischief seeks guard counselman hitchcock privilege fulfilled criminal defendant guaranteed right remain silent unless chooses speak unfettered exercise suffer penalty silence malloy hogan iii also quite clear introduction evidence violated eighth amendment right fair sentencing proceeding respect disagree appeals reading opinion authored zant stephens appeals concluded jury also found aggravating circumstance vileness death sentence stand even pile testimony represented flagrant fifth amendment violation zant held georgia invalidation one three aggravating circumstances found jury require death penalty set aside conclusion reached satisfied evidence relating invalid aggravating circumstance properly admitted conclude appeals seems assumed evidence concerning invalid circumstance simply irrelevant valid circumstances events sufficient support death penalty fact record adequately establishes one valid aggravating circumstance may make defendant eligible death penalty justify conclusion death sentence stand even though highly prejudicial inadmissible evidence presented jury sentencing hearing introduction highly prejudicial inadmissible evidence evidence represents independent constitutional violation quite clearly undermines validity capital sentencing proceeding violates eighth amendment iv thus reach merits petitioner constitutional claim also conclude merit question remains one addresses last two paragraphs opinion whether constitutional error warrants conclusion death penalty set aside habeas corpus proceeding think question answered reference language governing statute writ issue law justice require hold today petitioner death sentence must stand despite fact blatant constitutional violations presumably made difference jury recommendation life death violates law quite clearly justice well respectfully dissent footnotes see gibson commonwealth cert denied see shall dispose matter law justice require see engle isaac writ habeas corpus indisputably holds honored position jurisprudence today prior centuries writ bulwark convictions violate fundamental fairness see murray carrier ante stevens concurring judgment indeed murray conceded cause prejudice test may lack perfect historical pedigree ante noted acknowledged much wainwright sykes ibid see reed ross francis henderson fay noia goes long way toward eliminating distinction procedural default cases request habeas relief ultimate issue trial distinction long central understanding great writ see ex parte bollman cranch marshall demonstrated bar question brought forward habeas corpus always distinct involved cause question whether individual shall imprisoned always distinct question whether shall convicted acquitted charge tried therefore questions separated may decided different courts see supra expressing view william howard taft observed precisely central value accuracy guilt innocence determinations fifth amendment might ill advised see taft administration criminal law yale examined original proposition prohibition defendant criminal case shall compelled testify seems aspects doubtful utility administration criminal law purpose convicting guilty crime seems natural follow process methods obtain ordinary life see moran burbine stevens dissenting miller fenton malloy hogan rogers richmond bram see also california ramos well separate opinions majority individual justices recognized qualitative difference death punishments requires correspondingly greater degree scrutiny capital sentencing determination zant stephens hereis qualitative difference death permissible form punishment rummel estelle theme unique nature death penalty purposes eighth amendment analysis repeated time time opinions sentence death differs kind sentence imprisonment lockett ohio burger imposition death public authority profoundly different penalties cf meltzer state forfeitures federal rights harv rev hen capital defendant raises nonfrivolous constitutional question neither state federal courts free refuse decide simply raised accordance state procedural requirements rather federal law expressly provide matters procedural default matters death different indeed recognized even threat death penalty may certain circumstances exert special pull favor exercise federal undisputed statutory power entertain habeas corpus writ claim procedurally defaulted fay noia willing excuse noia deliberate decision appeal noia perceived death sentence might result grisly choice whether sit content life imprisonment travel uncertain avenue appeal successful might well led retrial death sentence see also wainwright sykes emphasizing noia grisly choice acceptance life sentence pursuit appeal might culminate sentence death see murray carrier ante stevens concurring judgment meltzer supra note procedural defaults appellate stage federal habeas corpus review stan rev see brief assistance project university virginia law school amicus curiae pp arguing fifth amendment required suppression psychiatrist testimony cf mapp ohio addressing issue raised amicus schwinden burlington northern mont determine follow usual rule issues raised amici part underlying action considered see gibson zahradnick holding gibson commonwealth analysis violates constitution writ habeas corpus issue cert denied fact although appeals fourth circuit decided gibson briefs petitioner case filed gibson opinion issued initial virginia opinion refusing address issue see state habeas opinion app oth gibson zahradnick smith estelle decided petitioner trial thus regardless usefulness theory sustain appeal neither fact available counsel needed light facts differences noted find sufficient reason counsel raised appeal arguments presented thus conclude counsel exercised reasonable judgment deciding preserve objection appeal state habeas order record fifth amendment issue waived forfeited considered see pembaur cincinnati regents university michigan ewing empresa de viacao aerea rio grandense bishop wood propper clark see jenkins anderson applicability sykes prejudice test may turn interpretation state law resolution question aided significantly views federal courts may possess greater familiarity state law rummel estelle deferring appeals interpretation texas law decline hold wainwright bars rummel presenting claim see rule app proc cases death penalty imposed may notice plain error defect proceeding review whether brought attention trial take appropriate appellate action reason thereof whenever error probably adversely affected substantial rights petitioner arkansas rev stat ann either sentence life imprisonment death present shall review errors prejudicial rights appellant cave state capital cases course continue review every issue presented conduct review accordance florida rule appellate procedure georgia unified appeal rule iv capital cases shall review assertions error timely raised defendant proceedings trial regardless whether assertion error presented trial motion new trial regardless whether error enumerated state osborn idaho death clearly different kind punishment might imposed idaho code mandates examine sentence procedure followed imposing sentence regardless whether appeal even taken indicates us may ignore unchallenged errors moreover gravity sentence death infrequency imposed outweighs rationale might proposed justify refusal consider errors objected people holman ordinarily contention made trial waived appeal however qualitative difference death forms punishment elected address errors death penalty cases might affected decision sentencing jury cert denied lowery state ind failure properly raise issues motion correct errors generally results waiver claimed errors since death penalty imposed case however review state record concerning questions ice commonwealth death penalty case every prejudicial error must considered whether objection made trial cert denied state hamilton la death penalty cases reviewed assignments error despite absence contemporaneous objection order determine whether error render ed result unreliable thus avoiding later consideration error context ineffective assistance counsel state nave mo several hold general rule allegations error assigned motion new trial preserved appellate review codified missouri rule exceptions applicable inapplicable death penalty cases even though assignment error improperly preserved review ex gratia point relied plain error determine manifest injustice miscarriage justice resulted denial nave request continuance commonwealth mckenna imposition death penalty irrevocable finality imperative standards sentence fixed constitutionally beyond reproach waiver rule exalted position lofty require blind real issue propriety allowing state conduct illegal execution state patterson appeal murder conviction death penalty imposed reviews entire record prejudicial error favorem vitae regardless whether error properly preserved review state brown utah objection made omission nevertheless capital case consider defendant contention appeal indeed virginia law recognizes special obligations attendant reviewing death penalties providing automatic virginia review death penalty code giving capital cases priority docket state courts interpret statutes impose obligation review transcript possible errors see state osborn supra see prosecutor closing argument sentencing phase app said instructed may fix punishment death commonwealth proved case proved prior history commit criminal acts violence constitute continuous serious threat society commonwealth proved commonwealth proved prior crime convicted yesterday assaulted person bus said tore clothes decided state trial rejection petitioner trial objection psychiatrist testimony stands sharp contrast chief justice estelle analysis believe doctor pile duty inform anything may say may used law police officer miranda app state argues petitioner case distinguishable estelle defense requested psychiatric examination view fact pile related account prosecution testified prosecution quite clearly agent state sense psychiatrist estelle agent state see grigson went beyond simply reporting issue competence testified prosecution penalty phase crucial issue respondent future dangerousness role changed became essentially like agent state recounting unwarned statements made postarrest custodial setting petitioner amici turn argue examination assist defense absolute guarantee confidentiality rather miranda warnings required contend confidentiality especially important effectuate due process right consult psychiatrist recognized ake oklahoma since minimum estelle required pile give miranda warnings need consider possibility disclosure inappropriate circumstances least clear circumstances testimony violated petitioner fifth amendment right moreover need decide whether circumstances psychiatrist may actually acting agent defense transformation agent state constitutionally invalid sixth amendment invalid aggravating circumstance found jury case struck arnold georgia concluded fails provide adequate basis distinguishing murder case death penalty may imposed cases penalty may imposed see nn supra underlying evidence nevertheless fully admissible sentencing phase thus evidence jury might relied case find respondent previously convicted substantial number serious assaultive offenses concedes properly adduced sentencing hearing fully subject explanation defendant emphasis added continued decision case depends part existence important procedural safeguard mandatory appellate review death sentence georgia avoid arbitrariness assure proportionality accept view subsequent invalidation one several statutory aggravating circumstances automatically require reversal death penalty assured death sentence set aside invalidation aggravating circumstance makes penalty arbitrary capricious georgia response certified question expressly stated different result might reached case evidence submitted support statutory aggravating circumstance otherwise admissible thereafter circumstance failed ibid emphasis added