PER CURIAM
SMITH V. TEXAS
543 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
LaROYCE LATHAIR SMITH
v. TEXAS
on petition for writ of certiorari to the court of
criminal appeals of texas
No. 04–5323.Decided November 15, 2004
Per Curiam.
Petitioner LaRoyce Lathair Smith
was convicted of capital murder and sentenced to death by a jury in
Dallas County, Texas. Before the jury reached its sentence, the
trial judge issued a supplemental “nullification instruction.”
Ex parte Smith, 132 S. W. 3d 407, 409 (Tex. Crim.
App. 2004). That instruction directed the jury to give effect to
mitigation evidence, but allowed the jury to do so only by negating
what would otherwise be affirmative responses to two special issues
relating to deliberateness and future dangerousness. In
Penry v.
Johnson,
532 U. S. 782 (2001)
(Penry II), we held a similar “nullification instruction”
constitutionally inadequate because it did not allow the jury to
give “ ‘
full consideration and
full effect
to mitigating circumstances’ ” in choosing the defendant’s
appropriate sentence.
Id., at 797 (quoting
Johnson v.
Texas,
509 U. S. 350, 381
(1993) (O’Connor, J., dissenting)). Despite our holding in
Penry II, the Texas Court of Criminal Appeals rejected
petitioner’s request for postconviction relief. The court reasoned
that the instruction either was irrelevant because petitioner did
not proffer “constitutionally significant” mitigation evidence, or
was sufficiently distinguishable from the instruction in
Penry
II to survive constitutional scrutiny. 132 S. W. 3d, at
413, n. 21. We grant the petition for certiorari and petitioner’s
motion for leave to proceed
in forma pauperis, and
reverse.
I
In 1991, petitioner was convicted
of brutally murdering one of his former co-workers at a Taco Bell
in Dallas County. The victim and one of her co-workers were closing
down the restaurant when petitioner and several friends asked to be
let in to use the telephone. The two employees recognized
petitioner and let him in. Petitioner then told his former
co-workers to leave because he wanted to rob the restaurant. When
they did not leave, petitioner killed one co-worker by
pistol-whipping her and shooting her in the back. Petitioner also
threatened, but did not harm, his other former co-worker before
exiting with his friends. The jury found petitioner guilty of
capital murder beyond a reasonable doubt.
At the punishment phase, the jury
was instructed on two special issues: first, whether the killing
was deliberate; and second, whether the defendant posed a
continuing danger to others.[
Footnote 1] Approximately two years prior to the trial, we
had held that presenting only these two special issues, without
additional instructions regarding the jury’s duty to consider
mitigation evidence, violated the Eighth Amendment.
Penry
v.
Lynaugh,
492 U. S. 302, 328
(1989)
(Penry I). Shortly after petitioner’s trial, the
Texas Legislature amended its capital sentencing scheme to require
juries to take “into consideration all of the evidence, including
the circumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the defendant” in
deciding whether there are sufficient mitigating circumstances to
warrant a sentence of life imprisonment rather than a death
sentence.
Penry II,
supra, at 803 (citing Tex.
Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001)).
Petitioner, however, did not receive the benefit of the new
statutory instruction at his trial. Instead, just as in
Penry
II, petitioner was sentenced pursuant to a supplemental
instruction provided to the jury by the trial judge.[
Footnote 2] That instruction read:
“ ‘You are instructed that
you shall consider any evidence which, in your opinion, is
mitigating. Mitigating evidence is evidence that reduces the
Defendant’s personal or moral culpability or blameworthiness, and
may include, but is not limited to, any aspect of the Defendant’s
character, record, background, or circumstances of the offense for
which you have found him guilty. Our law does not specify what may
or may not be considered as mitigating evidence. Neither does our
law provide a formula for determining how much weight, if any, a
mitigating circumstance deserves. You may hear evidence which, in
your judgment, has no relationship to any of the Special Issues,
but if you find such evidence is mitigating under these
instructions, you shall consider it in the following instructions
of the Court. You, and each of you, are the sole judges of what
evidence, if any, is mitigating and how much weight, if any, the
mitigating circumstances, if any, including those which have no
relationship to any of the Special Issues, deserves.
“ ‘In answering the Special Issues
submitted to you herein, if you believe that the State has proved
beyond a reasonable doubt that the answers to the Special Issues
are “Yes,” and you also believe from the mitigating evidence, if
any, that the Defendant should not be sentenced to death, then you
shall answer at least one of the Special Issues “No” in order to
give effect to your belief that the death penalty should not be
imposed due to the mitigating evidence presented to you. In this
regard, you are further instructed that the State of Texas must
prove beyond a reasonable doubt that the death sentence should be
imposed despite the mitigating evidence, if any, admitted before
you.
“ ‘You are instructed that you may
deliberate as a body about mitigating circumstances, but you are
not required to reach a unanimous verdict as to their existence or
weight. When you vote about the Special Issues, each of you must
decide for yourself whether mitigating circumstances exist and, if
so, how much weight they deserve.’ ” 132 S. W. 3d, at
409.
Employing the framework of
special issues modified by the supplemental nullification
instruction, the jury considered a variety of mitigation evidence.
Petitioner presented evidence that (1) he had been diagnosed with
potentially organic learning disabilities and speech handicaps at
an early age; (2) he had a verbal IQ score of 75 and a full IQ of
78 and, as a result, had been in special education classes
throughout most of his time in school; (3) despite his low IQ and
learning disabilities, his behavior at school was often exemplary;
(4) his father was a drug addict who was involved with gang
violence and other criminal activities, and regularly stole money
from family members to support a drug addiction; and (5) he was
only 19 when he committed the crime.
In response, the prosecution submitted
evidence demonstrating that petitioner acted deliberately and
cruelly. The prosecution emphasized that petitioner knew his
victim, yet stabbed her repeatedly in numerous places on her body.
With respect to petitioner’s future dangerousness, the prosecution
stressed that petitioner had previously been convicted of
misdemeanor assault and proffered evidence suggesting that he had
violated several drug laws.
During closing arguments at the punishment
phase, the prosecution reminded the jury of its duty to answer
truthfully the two special issues of deliberateness and future
dangerousness.
“Now, when we talked to you on voir dire, we talked
to you about—and we spent a lot of time talking to you to determine
whether or not you could follow the law. You told us two very
important things when we talked to you. First of all, you told us
that in the appropriate case that you could give the death penalty.
Second, you said, ‘Mr. Nancarrow, Ms. McDaniel, if you prove to me
that the answers to those special issues should be yes, then I can
answer them yes.’ If you wavered, if you hesitated one minute on
that, then I guarantee you, you weren’t going to be on this jury.
We believed you then, and we believe you now.” Pet. for Cert.
6.
The jury verdict form tracked the
final reminders the prosecution gave the jury. The form made no
mention of nullification. Nor did it say anything about mitigation
evidence. Instead, the verdict form asked whether petitioner
committed the act deliberately and whether there was a probability
that he would commit criminal acts of violence that would
constitute a continuing threat to society. The jury was allowed to
give “Yes” or “No” answers only. The jury answered both questions
“Yes” and sentenced petitioner to death. App. 4 to Pet. for
Cert.
On direct appeal, petitioner argued that our
holding in
Penry I rendered his jury instructions
unconstitutional because the special issues did not allow the jury
to give effect to his mitigation evidence. The Texas Court of
Criminal Appeals affirmed petitioner’s sentence, reasoning that the
nullification instruction provided an adequate vehicle through
which the jury could consider petitioner’s evidence. We denied
certiorari on May 15, 1995.
Smith v.
Texas,
514 U. S.
1112.
Petitioner filed an original writ of habeas
corpus in the trial court in 1998. That suit was dismissed as
untimely, but the Texas Legislature amended its criminal code in
such a way as to allow petitioner to file a timely writ. Petitioner
did so, claiming that his jury was instructed in violation of the
Eighth Amendment. Before the Texas Court of Criminal Appeals,
petitioner argued that the jury instructions in his case ran afoul
of our holding in
Penry II. The court denied petitioner’s
application on the merits. 132 S. W. 3d 407 (2004).[
Footnote 3]
II
The Texas Court of Criminal
Appeals issued its opinion just prior to our decision in
Tennard v.
Dretke, 542 U. S. ___ (2004). In
Tennard, we reversed the Fifth Circuit’s refusal to grant
a certificate of appealability (COA) to a defendant who was
sentenced under the Texas capital sentencing scheme prior to the
legislative revisions which took place in the aftermath of
Penry I. Tennard, relying upon
Penry I, argued
that Texas’ two special issues—deliberateness and future
dangerousness—did not allow the jury to give effect to his
mitigation evidence and that the trial court’s failure to issue a
supplemental mitigation instruction that would allow the jury to
give full effect to his evidence rendered his death sentence
unconstitutional. The state court and the Fifth Circuit both held
that the lack of an adequate mitigation instruction was irrelevant.
The courts both determined that Tennard had failed to satisfy the
Fifth Circuit’s threshold standard for “ ‘constitutionally
relevant’ mitigating evidence, that is, evidence of a ‘uniquely
severe permanent handicap with which the defendant was burdened
through no fault of his own,’ and evidence that ‘the criminal act
was attributable to this severe permanent condition.’ ” 542 U.
S., at ___ (slip op., at 6) (some internal quotation marks
omitted).
Our rejection of that threshold
test was central to our decision to reverse in
Tennard. We
held that “[t]he Fifth Circuit’s test has no foundation in the
decisions of this Court. Neither
Penry I nor its progeny
screened mitigating evidence for ‘constitutional relevance’ before
considering whether the jury instructions comported with the Eighth
Amendment.”
Id., at ___ (slip op., at 9). Rather, we held
that the jury must be given an effective vehicle with which to
weigh mitigating evidence so long as the defendant has met a “low
threshold for relevance,” which is satisfied by
“ ‘ “evidence which tends logically to prove or disprove
some fact or circumstance which a fact-finder could reasonably deem
to have mitigating value.” ’ ”
Id., at ___ (slip
op., at 10) (quoting
McKoy v.
North Carolina,
494 U. S. 433,
440 (1990)).
The Texas Court of Criminal Appeals relied on
precisely the same “screening test” we held
constitutionally inadequate in
Tennard. 132 S. W. 3d,
at 413 (holding that mitigation evidence requires a special
instruction only when that evidence passes the threshold test of
“whether the defendant’s criminal act was ‘due to the uniquely
severe permanent handicaps with which the defendant was burdened
through no fault of his own’ ” (quoting
Robertson v.
Cockrell, 325 F. 3d 243, 251 (CA5 2003) (en banc)).
Employing this test, the court concluded that petitioner’s low IQ
and placement in special-education classes were irrelevant because
they did not demonstrate that he suffered from a “severe
disability.” 132 S. W. 3d, at 414. But, as we explained in
Tennard, “[e]vidence of significantly impaired
intellectual functioning is obviously evidence that ‘might serve as
a basis for a sentence less than death.’ ” 542 U. S., at ___
(slip op., at 13) (some internal quotation marks omitted) (quoting
Skipper v.
South Carolina,
476 U. S. 1, 5 (1986)).
There is no question that a jury might well have considered
petitioner’s IQ scores and history of participation in
special-education classes as a reason to impose a sentence more
lenient than death. Indeed, we have held that a defendant’s IQ
score of 79, a score slightly higher than petitioner’s, constitutes
relevant mitigation evidence. See
Wiggins v.
Smith,
539
U. S. 510, 535 (2003); see also
Tennard,
supra, at ___ (slip op., at 14–15).
The state court also held that petitioner had
offered “no evidence of any link or nexus between his troubled
childhood or his limited mental abilities and this capital murder.”
132 S. W. 3d, at 414. We rejected the Fifth Circuit’s “nexus”
requirement in
Tennard,
supra, at ___ (slip op.,
at 12–13) (noting that none of our prior opinions “suggested that a
mentally retarded individual must establish a nexus between her
mental capacity and her crime before the Eighth Amendment
prohibition on executing her is triggered” and holding that the
jury must be allowed the opportunity to consider
Penry
evidence even if the defendant cannot establish “a nexus to the
crime”).
That petitioner’s evidence was relevant for
mitigation purposes is plain under our precedents, even those
predating
Tennard. See,
e.g., Penry I, 492 U. S.,
at 319–322;
Payne v.
Tennessee,
501 U. S. 808, 822
(1991);
Boyde v.
California,
494 U. S. 370, 377–378
(1990);
Eddings v.
Oklahoma,
455 U. S. 104, 114
(1982). The state court, however, erroneously relied on a test we
never countenanced and now have unequivocally rejected. We
therefore hold that the state court “assessed [petitioner’s legal]
claim under an improper legal standard.”
Tennard,
supra, at ___ (slip op., at 13). Because petitioner’s
proffered evidence was relevant, the Eighth Amendment required the
trial court to empower the jury with a vehicle capable of giving
effect to that evidence. Whether the “nullification instruction”
satisfied that charge is the question to which we now turn.
III
The Texas Court of Criminal
Appeals held that even if petitioner did proffer relevant
mitigation evidence, the supplemental “nullification instruction”
provided to the jury adequately allowed the jury to give effect to
that evidence. The court found it significant that the supplemental
instruction in this case “told the jury that it ‘shall’ consider
all mitigating evidence, even evidence unrelated to the special
issues, [and] it also told the jury how to answer the special
issues to give effect to that mitigation evidence.” 132 S. W.
3d, at 416. The court also concluded that the nullification
instruction made it clear to the jury that a “No” answer was
required if it “believed that the death penalty was not warranted
because of the mitigating circumstances.”
Ibid.
In Penry II, we held
that “the key under
Penry I is that the jury be able to
‘consider and
give effect to [a defendant’s mitigation]
evidence in imposing sentence.’ ” 532 U. S., at 797 (quoting
Penry I,
supra, at 319); see 532 U. S., at 797
(citing
Johnson v.
Texas, 509 U. S., at 381
(O’Connor, J., dissenting) (“[A] sentencer [must] be allowed to
give
full consideration and
full effect to
mitigating circumstances” (emphasis in
Johnson))). We
explained at length why the supplemental instruction employed by
the Texas courts did not provide the jury with an adequate vehicle
for expressing a “reasoned moral response” to
all of the
evidence relevant to the defendant’s culpability. 532 U. S., at
796. Although there are some distinctions between the
Penry
II supplemental instruction and the instruction petitioner’s
jury received, those distinctions are constitutionally
insignificant.
Penry II identified a broad and
intractable problem—a problem that the state court ignored
here—inherent in any requirement that the jury nullify special
issues contained within a verdict form.
“We generally presume that jurors
follow their instructions. Here, however, it would have been both
logically and ethically impossible for a juror to follow both sets
of instructions. Because Penry’s mitigating evidence did not fit
within the scope of the special issues, answering those issues in
the manner prescribed on the verdict form necessarily meant
ignoring the command of the supplemental instruction. And answering
the special issues in the mode prescribed by the supplemental
instruction necessarily meant ignoring the verdict form
instructions. Indeed, jurors who wanted to answer one of the
special issues falsely to give effect to the mitigating evidence
would have had to violate their oath to render a ‘ “true
verdict.’ ”
“The mechanism created by the supplemental
instruction thus inserted ‘an element of capriciousness’ into the
sentencing decision, ‘making the jurors’ power to avoid the death
penalty dependent on their willingness’ to elevate the supplemental
instruction over the verdict form instructions. There is, at the
very least, ‘a reasonable likelihood that the jury … applied the
challenged instruction in a way that prevent[ed] the consideration’
of Penry’s mental retardation and childhood abuse. The supplemental
instruction therefore provided an inadequate vehicle for the jury
to make a reasoned moral response to Penry’s mitigating evidence.”
Id., at 799–800 (citations omitted).
It is certainly true that the
mandatory aspect of the nullification instruction made petitioner’s
instruction distinct from Penry’s. Indeed, the “shall” command in
the nullification instruction resolved the ambiguity inherent in
the
Penry II instruction, which we held was
either a nullification instruction or an instruction that
“ ‘shackled and confined’ ” Penry’s mitigating evidence
within the scope of the impermissibly narrow special issues.
Id., at 798. That being said, the clearer instruction
given to petitioner’s jury did not resolve the ethical problem
described
supra, at 10–11.[
Footnote 4] To the contrary, the mandatory language in the
charge could possibly have intensified the dilemma faced by ethical
jurors. Just as in
Penry II, petitioner’s jury
was required by law to answer a verdict form that made no mention
whatsoever of mitigation evidence. And just as in
Penry
II, the burden of proof on the State was tied by law to
findings of deliberateness and future dangerousness that had
little, if anything, to do with the mitigation evidence petitioner
presented.[
Footnote 5] Even if
we were to assume that the jurors could easily and effectively have
comprehended an orally delivered instruction directing them to
disregard, in certain limited circumstances, a mandatory written
instruction given at a later occasion, that would not change the
fact that the “jury was essentially instructed to return a false
answer to a special issue in order to avoid a death sentence.”
Penry II,
supra, at 801.
There is no principled distinction, for Eighth
Amendment purposes, between the instruction given to petitioner’s
jury and the instruction in
Penry II. Petitioner’s
evidence was relevant mitigation evidence for the jury under
Tennard and
Penry I. We therefore hold that the
nullification instruction was constitutionally inadequate under
Penry II. The judgment of the Texas Court of Criminal
Appeals is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
Footnote 1
The text of the special issues given to the
jury was as follows: “(1) Was the conduct of the defendant that
caused the death of the deceased committed deliberately, and with
the reasonable expectation that the death of the deceased or
another would result? (2) Is there a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society?” Pet. for Cert. 5.
Footnote 2
The supplemental instruction in
Penry
II stated: “ ‘You are instructed that when you deliberate
on the questions posed in the special issues, you are to consider
mitigating circumstances, if any, supported by the evidence
presented in both phases of the trial, whether presented by the
state or the defendant. A mitigating circumstance may include, but
is not limited to, any aspect of the defendant’s character and
record or circumstances of the crime which you believe could make a
death sentence inappropriate in this case. If you find that there
are any mitigating circumstances in this case,
you must
decide how much weight they deserve, if any, and therefore, give
effect and consideration to them in assessing the defendant’s
personal culpability at the time you answer the special issue. If
you determine, when giving effect to the mitigating evidence, if
any, that a life sentence, as reflected by a negative finding to
the issue under consideration, rather than a death sentence, is an
appropriate response to the personal culpability of the defendant,
a negative finding should be given to one of the special
issues.’ ” 532 U. S., at 789–790 (emphasis added).
Footnote 3
Four judges would have found petitioner’s
claim procedurally defaulted. See 132 S. W. 3d, at 417
(Hervey, J., concurring);
id., at 428 (Holcomb, J.,
concurring). The majority of the court, however, declined to adopt
this holding and reached petitioner’s claims on the merits.
Footnote 4
The concurring opinions below
straightforwardly recognized this problem. See 132 S. W. 3d
407, 427 (Tex. Crim. App. 2004) (Hervey, J., concurring)
(concluding that the “ ‘nullification’ instruction would, as a
matter of federal constitutional law, suffer from the same defect
as the one in
Penry II had applicant presented any
mitigating evidence that was beyond ‘the effective reach of the
sentencer’ ” and conceding that the instruction given to
petitioner may have been inadequate “as a matter of federal
constitutional law”);
id., at 428 (Holcomb, J.,
concurring) (“The nullification instruction provided to Smith’s
jury contained the same defects the Supreme Court identified in
Penry II. Therefore, the jury was unconstitutionally
precluded from considering and giving effect to Smith’s mitigating
evidence”).
Footnote 5
There is another similarity between this case
and
Penry II. In
Penry II, we found it
significant that the prosecutor admonished the jury to
“ ‘follow your oath, the evidence and the law’ ” prior to
the deliberations in which the jury was required to fill out the
verdict form. We held that this statement sent the jury “mixed
signals” and “only reminded the jurors that they had to answer the
special issues
dishonestly in order to give effect to
Penry’s mitigating evidence.” 532 U. S., at 802. The prosecutor
here similarly reminded the jury that each and every one of them
had promised to “follow the law” and return a “Yes” answer to the
special issues so long as the State met its burden of proof. Pet.
for Cert. 6. Thus, the nullification instruction presented the same
ethical dilemma here and, what is more, it seems that despite the
inclusion of the mandatory “shall” language, the nullification
instruction may have been more confusing for the jury to implement
in practice than the state court assumed.
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