823 F.2d 98
v.
James A. Lynaugh, Interim Director,
Texas Department Of Corrections,
Respondent-appellee
United States Court of Appeals, Fifth Circuit.
July 30, 1987
Appeals from the United States District Court for the Western District of Texas.
Before GEE, RANDALL, and DAVIS, Circuit Judges.
PER CURIAM:
There is small occasion for us to rehearse the sickening facts of this murder, one in which an innocent victim who stepped into the wrong place at the wrong time was stabbed, raped and left to bleed to death for five days in the July sun of Texas. These are set forth at length in the various opinions on direct appeal, e.g., 606 S.W.2d 818 (Tex.Crim.App.1979). Nor need much be said on the law, it having developed and set against petitioner's contentions over the course of the twelve years since his crime. We affirm the trial court's judgment denying habeas relief on the basis of that court's opinions, adding a few observations chiefly based on events occurring since that court ruled.
Of petitioner's points, the most nearly meritorious is that complaining of an improper reference to petitioner's post-arrest silence after he had received Miranda warnings. Since the handing down of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), comments by the prosecutor on the post-arrest silence of a defendant after the administration of Miranda warnings have been taboo. The Supreme Court has now held, however, that such a question as the prosecutor asked in this case does not require a grant of habeas relief where no use of the fact of petitioner's silence is permitted by the court. Greer v. Miller, --- U.S. ----, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Here there was none; a sustained objection and an instruction to disregard followed hard on the improper question. It was never heard of again. Greer is on all fours; it controls.
The next most troubling was a statistics-based claim that the Texas murder statute is applied in a discriminatory way against blacks who murder whites. Petitioner's claims in this respect have been resolved against him by the Court's opinion in McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
Finally, we were concerned by petitioner's contention that the wording of the trial court's charge was such as to have permitted the jury to have convicted petitioner of capital murder for a killing committed in the course of a felony, when some jurors may have believed that the felony was robbery, while others thought it kidnapping.1 While, on the words of the court's charge standing alone, this may seem a realistic objection, when the record is consulted, it is not. On the evidence, there was little serious dispute that whoever attacked the victim both robbed and kidnapped her. Petitioner's defense disputed these matters only pro forma; his major claim was that he was not the perpetrator of the crime, that his indictment was the result of mistaken identity. The evidence supporting the commission of both felonies was crushing, unanswerable; the only question was, who did them? In these circumstances, the claim that some jurors may have thought Franklin only a kidnapper while others thought him only a robber lacks any substance whatever, despite its abstract plausibility. The jury faced only one real question: whoever did this thing did both robbery and kidnapping, but was it Franklin?
The jury found that it was. For whatever it adds, we agree. The stay of execution earlier granted is VACATED, and judgment is AFFIRMED.
*****
The portion of the charge in question authorized conviction on a finding of murder "... in the course of committing and attempting to commit the offense of robbery or kidnapping (emphasis supplied)
487 U.S. 164
No. 87-5546
Argued March 1, 1988
Decided June 22, 1988
At petitioner's Texas capital murder trial, his principal defense was that he had been mistakenly identified, and that -- even if he was the person who stabbed the victim -- her death resulted from incompetent hospital treatment, and not the assault. After the jury found him guilty, the sole mitigating evidence he presented at the penalty phase was the stipulation that his disciplinary record while incarcerated, both before and after the murder, was without incident. At the conclusion of the penalty hearing, the trial court, pursuant to state law, submitted two "Special Issues" to the jury, asking whether it found from the evidence beyond a reasonable doubt (1) that the murder was committed deliberately and with the reasonable expectation that death would result, and (2) that there was a probability that petitioner would constitute a continuing threat to society. The court instructed the jury that, if their answer was "Yes" to both questions, petitioner would be sentenced to death. Earlier, in order to direct the jury's consideration of the Special Issues, petitioner had submitted five "special requested" jury instructions, which, in essence, would have told the jury that any evidence they felt mitigated against the death penalty should be taken into account in answering the Special Issues, and could alone be enough to return a negative answer to either one or both of the questions, even if they otherwise believed that "Yes" answers were warranted. The court declined to give the requested instructions, and instead remonstrated the jury to remember and be guided by all instructions previously given, which included the charge that they arrive at their verdict based on all the evidence. After the jury returned "Yes" answers to both Special Issues, the court sentenced petitioner to death, and the state appellate court affirmed. Petitioner then filed this habeas corpus action, arguing that, absent his special requested instructions, the Special Issues limited the jury's consideration of mitigating evidence in violation of the Eighth Amendment under this Court's decisions. Rejecting this claim, the District Court denied relief, and the Court of Appeals affirmed.
Held: The judgment is affirmed.
823 F.2d 98, affirmed.
JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded that the trial court's refusal to give petitioner's
requested special instructions did not violate his Eighth Amendment right to present mitigating evidence. Neither the instructions actually given nor the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances, or otherwise unconstitutionally limited the jury's discretion. Pp. 487 U. S. 171-183.
(a) There is no merit to petitioner's contention that the sentencing jury was deprived of a sufficient opportunity to consider any "residual doubt" it might have harbored about his identity as the murderer, or about the extent to which his actions (as opposed to medical mistreatment) actually caused, or were intended to result in, the victim's death. This Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his guilt as a basis for mitigation. The discussion of the "residual doubt" question in Lockhart v. McCree, 476 U. S. 162, stands only for the simple truism that such doubts will inure to the defendant's benefit where the State is willing to allow him to capitalize upon them. Nor does Eddings v. Oklahoma, 455 U. S. 104, establish the claimed "right," since lingering doubts over the defendant's guilt do not relate to his "character" or "record," or to "the circumstances of the offense," which the sentencer must be given a chance to consider in mitigation. However, even if the claimed "right" existed, the rejection of petitioner's proffered instructions did not impair that right, since the trial court placed no limitation on petitioner's opportunity to press the "residual doubts" issue. Moreover, the medical mistreatment and intentional killing questions are precisely the type of concerns that the jury might have considered in answering the deliberateness question of the first Special Issue, and, thus, petitioner was not deprived of any opportunity to make, and in fact made, a nondeliberateness argument to the jury. In any case, there was nothing in the proffered special instructions that offered specific direction to the jury concerning their consideration of any of these "residual doubt" questions. Pp. 487 U. S. 172-176.
(b) Since, at the sentencing hearing, petitioner was permitted to emphasize evidence of his good prison disciplinary record with regard to the second Special Issue concerning future dangerousness, the jury was not precluded from giving adequate mitigating weight to that evidence. Petitioner's contention that the failure to give his requested instructions deprived the evidence of its significance as a reflection of his "character" independent of its relevance to the Special Issues is not convincing, since nothing in this Court's cases suggests that "character," as illuminated by a disciplinary record, encompasses anything more than likely future behavior. Cf. Skipper v. South Carolina, 476 U. S. 1. Furthermore, nothing in petitioner's presentation or discussion of his record at the hearing suggested that the jury should consider that evidence as probative of anything more than future dangerousness. Petitioner cannot
avail himself of the statement in Eddings, supra, at 455 U. S. 114, that the sentencing jury may not be precluded from considering "any relevant mitigating evidence," since the State is entitled to structure the jury's consideration of mitigating factors. The claim that the jury should have been instructed that it was entitled to vote against the death penalty "independent" of its answers to the Special Issues is foreclosed by Jurek v. Texas, 428 U. S. 262, which held that the State could constitutionally impose death if the jury answered "Yes" to both Special Issues. Pp. 487 U. S. 177-180.
(c) The Texas capital sentencing system adequately allows for jury consideration of mitigating circumstances, and therefore sufficiently provides for jury discretion. Pp. 487 U. S. 181-182.
JUSTICE O'CONNOR, joined by JUSTICE BLACKMUN, concluded that the Texas capital sentencing procedure did not unconstitutionally prevent the jury from giving mitigating effect to any evidence relevant to petitioner's character or background or the circumstances of the offense. Pp. 487 U. S. 183-188.
(a) Although the Texas procedure did confine consideration of the stipulation as to petitioner's prison disciplinary record to the context of the special verdict question regarding future dangerousness, thereby preventing the jury from treating the stipulation as if it were relevant to other character traits, that limitation has no practical or constitutional significance on the facts of this case, because the stipulation had no relevance to any aspect of petitioner's character other than a lack of future dangerousness. Thus, petitioner was not prejudiced by the limitation, since it did not interfere with his presentation of mitigating evidence or with the jury's ability to give effect to that evidence. Cf. Skipper v. South Carolina, 476 U. S. 1. Pp. 487 U. S. 185-187.
(b) Although the capital sentencing procedure may have prevented the jury from giving effect to any "residual doubts" it might have had about petitioner's guilt, that limitation did not violate the Eighth Amendment. Rather than being a fact about the defendant's character or background or the circumstances of the particular offense, "residual doubt" is merely a lingering uncertainty about facts -- a state of mind that exists somewhere between "beyond a reasonable doubt" and "absolute certainty" -- and thus is not a mitigating circumstance under this Court's decisions, which have never required such a heightened burden of proof at capital sentencing. Pp. 487 U. S. 187-188.
WHITE, J., announced the judgment of the Court, and delivered an opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 487 U. S. 183. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 189.
JUSTICE WHITE announced the judgment of the Court, and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.
*****
In this case, we are called on to determine if the Eighth Amendment required a Texas trial court to give certain jury instructions, relating to the consideration of mitigating evidence, that petitioner had requested in the sentencing phase of his capital trial.
I
Suspicion had focused on petitioner within hours of Ms. Moran's abduction, and he was arrested the following morning at his house, where police found a wide array of physical evidence concerning the crime. [Footnote 1] Petitioner told the officers
that he had loaned his car and clothing to a friend the previous evening, and had no explanation for the physical evidence revealed by the search.
Petitioner did not take the stand at his trial. [Footnote 2] His principal defense was that he had been mistakenly identified, and that -- even if he was the person who stabbed the victim -- her death was the result of incompetent hospital treatment, and not the assault. The jury found petitioner guilty of capital murder under Tex.Penal Code Ann. § 19.03 (1974).
At the penalty phase of petitioner's trial, the State called four police officers who testified that petitioner had a bad reputation as a law-abiding citizen. The State also proved that petitioner had a prior conviction for rape, and called a witness who testified that petitioner had raped her the year before this crime was committed. The sole mitigating evidence petitioner presented was the stipulation that petitioner's disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without incident. At the conclusion of this penalty hearing, the trial court, pursuant to Tex.Code Crim.Proc.Ann., Art. 37.071(b) (Vernon 1981), submitted two "Special Issues" to the jury, [Footnote 3] instructing the jury that, if
they determined the answer to both these questions to be "Yes," petitioner would be sentenced to death.
Earlier, petitioner had submitted five "special requested" jury instructions to direct the jury's consideration of the Special Issues. [Footnote 4] In essence, the requested instructions would
have told the jury that any evidence considered by them to mitigate against the death penalty should be taken into account in answering the Special Issues, and could alone be enough to return a negative answer to either one or both of the questions submitted to them -- even if the jury otherwise believed that "Yes" answers to the Special Issues were warranted.
The trial court declined to give the petitioner's requested instructions, and instead gave a brief charge which remonstrated the jury to "remember all the instructions that the Court has previously given you, and be guided by them." App. 13. Those previous instructions included the charge that they arrive at their verdict based on all the evidence. The jury returned "Yes" answers to both Special Issues, and the trial court therefore imposed a sentence of death. Subsequently, the Texas courts affirmed petitioner's conviction and death sentence. Franklin v. State, 693 S.W.2d 420 (Tex.Crim.App.1985).
Petitioner then filed this federal habeas action contesting his conviction and sentence. Among other claims, petitioner argued that, absent his special requested instructions, the Texas Special Issues limited the jury's consideration of mitigating evidence, contrary to this Court's decision in Lockett v. Ohio, 438 U. S. 586 (1978), and several other decisions as well. The District Court rejected this claim, finding no error in the trial court's refusal to give the requested instructions and no violation of this Court's precedents. App. 22. The Court of Appeals affirmed the District Court's denial of habeas relief without commenting on the jury instruction claim. 823 F.2d 98, 99-100 (CA5 1987).
Petitioner then sought review by this Court. We granted certiorari to determine if the trial court's refusal to give the requested instructions violated petitioner's Eighth Amendment
right to present mitigating evidence at his capital sentencing trial, 484 U.S. 891 (1987), and now affirm the judgment below.
II
Nor does petitioner complain that he was denied the opportunity to present any mitigating evidence to the jury, or that the jury was instructed to ignore any mitigating evidence petitioner did present. Cf. Hitchcock v. Dugger, 481 U. S. 393 (1987). Here, petitioner was permitted to present to the jury any and all mitigating evidence that he offered. It is the established Texas practice to permit jury consideration of "whatever mitigating circumstances' the defendant might be able to show" in capital sentencing -- a practice which this Court relied upon when it concluded in Lockett v. Ohio, supra, that our decision in that case did not require reversal of our earlier approval of the Texas Special Issue scheme in Jurek. See Lockett v. Ohio, supra, at 438 U. S. 606-607 (opinion of Burger, C.J.). In the decade which has followed, the Texas courts have expressed resolute adherence to Lockett, declaring that, under Texas' capital sentencing procedures, the defense is free to ask "the jury . . . to consider whatever evidence of mitigating circumstances the defense can bring before it." Quinones v. State, 592 S.W.2d 933, 947 (Tex.Crim.App.1980). [Footnote 5]
Petitioner nevertheless complains that the instructions and Special Issues did not provide sufficient opportunity for the jury, in the process of answering the two Special Issues, to consider whatever "residual doubt" it may have had about petitioner's guilt. The instructions also allegedly did not allow the jury to give adequate weight to the mitigating evidence of petitioner's good behavior while in prison. In addition, petitioner contends that the Eighth Amendment was violated because the jury was not afforded an opportunity to "giv[e] independent mitigating weight," Lockett, supra, at 438 U. S. 605, to the circumstances the defense presented; i.e., not permitted to weigh petitioner's mitigating evidence and circumstances apart from its deliberation over the Texas Special Issues, and return a verdict requiring a life sentence. See Brief for Petitioner 20; Tr. of Oral Arg. 18, 23.
We consider these claims with respect to each of petitioner's two "mitigating factors."
A
Petitioner first suggests that the jury may, in its penalty deliberations, have harbored "residual doubts" about three issues considered in the guilt phase of his trial: first, petitioner's identity as the murderer; second, the extent to which petitioner's actions (as opposed to medical mistreatment) actually caused the victim's death; and third, the extent to which petitioner's actions were intended to result in the victim's death. See Brief for Petitioner 13; 12 Record 2892-2896. He argues that the jury should have been instructed that it could consider any such doubts in arriving at its answers to the Special Issues.
(1)
At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the
murderer as a basis for mitigation. Petitioner suggests that our discussion of the "residual doubt" question in Lockhart v. McCree, 476 U. S. 162, 476 U. S. 180-182 (1986), supports his position that he has such an entitlement. See Tr. of Oral Arg. 6-7; Brief for Petitioner 9. But all that this aspect of the Lockhart opinion stands for is the simple truism that, where "States are willing to go to allow defendants to capitalize on residual doubts,'" such doubts will inure to the defendant's benefit. Lockhart, supra, at 476 U. S. 181. Lockhart did not endorse capital sentencing schemes which permit such use of "residual doubts," let alone suggest that capital defendants have a right to demand jury consideration of "residual doubts" in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a "few times in which any legitimacy has been given" to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. 476 U.S. at 476 U. S. 205-206 (MARSHALL, J., dissenting). The dissent also noted that this Court has not struck down the practice in some States of prohibiting the consideration of "residual doubts" during the punishment trial. [Footnote 6] Ibid.
Our edict that, in a capital case,
"the sentencer . . . [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense,"
Eddings v. Oklahoma, 455 U. S. 104, 455 U. S. 110 (1982) (quoting Lockett, 438 U.S. at 438 U. S. 604), in no way mandates reconsideration by capital juries, in the sentencing phase, of their "residual doubts" over a defendant's guilt. Such lingering doubts are not over any aspect of petitioner's "character," "record," or a "circumstance of the offense." This Court's prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.
Most importantly, even if we were inclined to discern such a right in the Eighth Amendment, we would not find any violation of it in this case. For even if such a right existed, nothing done by the trial court impaired petitioner's exercise of this "right." The trial court placed no limitation whatsoever on petitioner's opportunity to press the "residual doubts" question with the sentencing jury. Moreover, in our view, the trial court's rejection of petitioner's proffered jury instructions was without impact on the jury's consideration of the "residual doubts" issue. We reject petitioner's complaint that the possibility of residual doubt was not "self-evidently relevant to either of the special issue questions," and that,
"[u]nless told that residual doubt . . . could be considered in relation to [the special issue] question[s], the jurors could logically have concluded that such doubt was irrelevant."
Brief for Petitioner 15, 16. Among other problems with this argument is the simple fact that petitioner's requested instructions on mitigating evidence themselves offered no specific direction to the jury concerning the potential consideration of "residual doubt." See App. 7-12. The proposed instructions did not suggest that lingering doubts
about the petitioner's guilt were to be a subject of deliberations in the sentencing phase. [Footnote 7] Consequently, it is difficult to see how the rejection of these instructions denied petitioner the benefit of any "residual doubts" about his guilt.
In sum, even if petitioner had some constitutional right to seek jury consideration of "residual doubts" about his guilt during his sentencing hearing -- a questionable proposition -- the rejection of petitioner's proffered jury instructions did not impair this "right."
(2)
In regard to the second and third elements of "residual doubt" petitioner advances -- potential jury doubts over his responsibility for the victim's death, and the extent to which he intended the victim's death if indeed he was her attacker -- we do not think that the Texas Special Issues limited the jury's consideration of any doubts in these respects.
Petitioner suggests that there may have been residual doubt over the question of whether the victim would have perished had she received proper medical treatment. See Brief for Petitioner 5, 13; 12 Record 2895-2896. Yet, to the extent that this question implicates petitioner's culpability in causing Ms. Moran's death, this is precisely the concern that the jury might have considered in answering Special Issue No. One, i.e., in determining that
"the conduct of the Defendant . . . that caused the death of [the victim] was committed deliberately and with the reasonable expectation that the death of the deceased . . . would result."
App. 15. The
Texas courts have consistently held that something more must be found in the penalty phase -- something beyond the guilt-phase finding of "intentional" commission of the crime -- before the jury can determine that a capital murder is "deliberate" within the meaning of the first Special Issue. See, e.g., Marquez v. State, 725 S.W.2d 217, 244 (Tex.Crim.App.1987); Fearance v. State, 620 S.W.2d 577, 584 (Tex.Crim.App.1981). In fact, Texas juries have found, on occasion, that a defendant had committed an "intentional murder" without finding that the murder was a "deliberate" one. See, e.g., Heckert v. State, 612 S.W.2d 549, 552 (Tex.Crim.App.1981). Petitioner was not deprived of any opportunity to make a similar argument here in mitigation.
The same is true of the parallel contention that petitioner did advance at the end of the penalty hearing: that his murder of Ms. Moran was not a "deliberate" one, but rather "a [h]elter-skelter crazy crime of passion." 13 Record 2962-2963. This argument echoed a theme petitioner raised in the closing argument of the guilt phase of the trial. See 12 Record 2893-2897. But this element of "residual doubt" could likewise have been considered by the jury in answering the first Special Issue.
Petitioner was thus not deprived of any chance to have his sentencing jury weigh this element of his culpability. And, as was the case with respect to the "residual doubt" issue discussed in Part II-A(1), there was nothing in petitioner's proposed jury instructions which would have provided the jury with any further guidance, beyond that already found in the first Special Issue, to direct its consideration of this mitigating factor. The denial of petitioner's special requested instructions in no way limited his efforts to gain full consideration by the sentencing jury -- including a reconsideration of any "residual doubts" from the guilt phase -- of petitioner's deliberateness in killing Ms. Moran.
B
The second mitigating circumstance which petitioner claims that the jury did not adequately consider is his good disciplinary record during his period of incarceration, both before and after the murder of Ms. Moran.
As noted above, petitioner's prison disciplinary record was presented to the jury in this case -- in fact, it was the sole bit of evidence in mitigation petitioner presented during the penalty phase of his trial. 13 Record 2952-2953. This case is therefore unlike Skipper v. South Carolina, 476 U. S. 1, 476 U. S. 3 (1986), where evidence of the defendant's conduct while incarcerated was wholly excluded from the jury's consideration in its sentencing deliberations. To the contrary, petitioner here was permitted to press, with some emphasis, his good behavior in prison when he urged the jury, at the close of the sentencing hearing, to return a "No" answer to the second Special Issue concerning future dangerousness. See 13 Record 2963-2965. Petitioner acknowledged as much before this Court. Tr. of Oral Arg. 14, 24.
Petitioner objects, however, that -- absent his requested jury instructions -- there was no opportunity for the jury to give "independent" mitigating weight to his prison record. See Lockett, 438 U.S. at 438 U. S. 604. He argues that this mitigating evidence had significance independent of its relevance to the Special Issues -- as a reflection on his "character." See Skipper, supra, at 476 U. S. 4. Petitioner contends that his prison disciplinary record reflected so positively on his "character" that the instructions in this case should have provided the jury with a "mechanism though which to impose a life sentence" even if the jury otherwise believed that both Special Issues should have been answered "Yes." Brief for Petitioner 20. For several reasons, we do not find these arguments convincing.
First, petitioner was accorded a full opportunity to have his sentencing jury consider and give effect to any mitigating
impulse that petitioner's prison record might have suggested to the jury as they proceeded with their task. In resolving the second Texas Special Issue, the jury was surely free to weigh and evaluate petitioner's disciplinary record as it bore on his "character" -- that is, his "character" as measured by his likely future behavior. We have never defined what the term "character" means when we have held that a defendant's "character" is a relevant consideration in capital sentencing. [Footnote 8] But nothing in our cases supports petitioner's contention that relevant aspects of his "character," as far as they were illuminated by the presentation of evidence concerning petitioner's disciplinary record, encompassed anything more than those matters fully considered by the jury when it was asked to answer the second Special Issue.
2963-2964. Even in this Court, in seeking to define how his prison record sheds light on his "character," petitioner has cast his argument in terms of future dangerousness. [Footnote 9]
We find unavailing petitioner's reliance on this Court's statement in Eddings, 455 U.S. at 455 U. S. 114, that the sentencing jury may not be precluded from considering "any relevant, mitigating evidence." See Tr. of Oral Arg. 15. This statement leaves unanswered the question: relevant to what? While Lockett, supra, at 438 U. S. 604, answers this question at least in part -- making it clear that a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant's "character," "record," or the "circumstances of the offense" -- Lockett does not hold that the State has no role in structuring or giving shape to the jury's consideration of these mitigating factors. See Booth v. Maryland, 482 U. S. 496, 482 U. S. 502 (1987). Given the awesome power that a sentencing jury must exercise in a capital case, it may be advisable for a State to provide the jury with some framework for discharging these responsibilities. And we have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required. See Zant v. Stephens, 462 U. S. 862, 462 U. S. 875-876, n. 13 (1983).
We are thus quite sure that the jury's consideration of petitioner's prison record was not improperly limited. The jury
was completely free to give that evidence appropriate weight in arriving at its answers to the Special Issues. And as for the claim that the jury should have been instructed that, even if its answer to the Special Issues was "Yes," it was still entitled to cast an "independent" vote against the death penalty, we note that this submission is foreclosed by Jurek, which held that Texas could constitutionally impose the death penalty if a jury returned "Yes" answers to the two Special Issues. See Jurek, 428 U.S. at 428 U. S. 273-274 (joint opinion). Jurek has not been overruled; and we are not inclined to take any such action now. [Footnote 10]
III
It is true that, since Jurek was decided, this Court has gone far in establishing a constitutional entitlement of capital defendants to appeal for leniency in the exercise of juries' sentencing discretion. See, e.g., Eddings v. Oklahoma, 455 U.S. at 455 U. S. 113-117, Lockett v. Ohio, 438 U.S. at 438 U. S. 608 (opinion of Burger, C.J.). But even in so doing, this Court has never held that jury discretion must be unlimited or unguided; we have never suggested that jury consideration of mitigating evidence must be undirected or unfocused; we have never concluded that States cannot channel jury discretion in capital sentencing in an effort to achieve a more rational and equitable administration of the death penalty.
Much in our cases suggests just the opposite. This Court has previously held that the States
"must channel the [capital] sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance' and that 'make rationally reviewable the process for imposing a sentence of death.'"
Godfrey v. Georgia, 446 U. S. 420, 446 U. S. 428 (1980) (plurality opinion) (footnotes omitted). Our cases before and since have similarly suggested that "sentencers may not be given unbridled discretion in determining the fates of those charged with capital offenses," and that the
"Constitution . . . requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion."
California v. Brown, 479 U. S. 538, 479 U. S. 541 (1987). See also Proffitt v. Florida, 428 U. S. 242, 428 U. S. 253 (1976) (joint opinion); Gregg v. Georgia, supra, at 428 U. S. 189, 428 U. S. 195, n. 46, 428 U. S. 196, n. 47, 428 U. S. 198 (joint opinion).
Arguably these two lines of cases -- Eddings and Lockett on the one hand, and Gregg and Proffitt on the other -- are somewhat in "tension" with each other. See California v. Brown, supra, at 479 U. S. 544 (O'CONNOR, J., concurring). Yet the Texas capital sentencing system has been upheld by this Court, and its method for providing for the consideration of mitigating evidence has been cited repeatedly with favor, [Footnote 11] precisely because of the way in which the Texas scheme accommodates both of these concerns. Doubtlessly this is why this Court originally approved Texas' use of Special Issues to guide jury discretion in the sentencing phase, notwithstanding the fact -- expressly averted to in the plurality opinion for the Court -- that mitigating evidence is employed in the Texas scheme only to inform the jury's consideration of the answers to the Special Issue questions. Jurek, supra, at 428 U. S. 272-273. [Footnote 12] No doubt this is also why the Texas scheme has continued to pass constitutional muster, even when the Court laid down its broad rule in Lockett, supra, at 438 U. S. 606-607 (opinion of Burger, C.J.), concerning the consideration of mitigating evidence. Simply put, we have previously recognized that the Texas Special Issues adequately
"allo[w] the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provid[e] for jury discretion."
See Lowenfield v. Phelps, 484 U. S. 231, 484 U. S. 245 (1988). We adhere to this prior conclusion.
IV
Affirmed.
Among the items found at petitioner's home were: a pair of shoes with human blood on them that matched the victim's type; some of petitioner's clothes, soiled with blood and plant samples (matching the field where the victim was discovered); one of petitioner's shirts, covered with fibres that matched the victim's sweater. In addition, in a trash can behind petitioner's house, various items of the victim's personal property were found, as well as a knife which was later determined to be the apparent murder weapon.
Similar fibre, plant, and blood sample evidence was found in petitioner's car, matching samples of the victim's blood, her clothing, and the field where she was found. See Franklin v. State, 606 S.W.2d 818, 819-821 (Tex.Crim.App.1979).
This petition concerns the proceedings at petitioner's 1982 trial, his third for this same offense. Petitioner's two previous convictions and death sentences were set aside for reasons unrelated to the issues before us now. See Franklin v. State, 693 S.W.2d 420, 422 (Tex.Crim.App.1985).
The two Special Issues, as presented to the jury in this case, were:
"Do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant, Donald Gene Franklin, that caused the death of Mary Margaret Moran, was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?"
"Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Donald Gene Franklin, would commit criminal acts of violence that would constitute a continuing threat to society?"
App. 15.
The requested jury instructions were, in pertinent part, as follows:
"You are instructed that any evidence which, in your opinion, mitigates against the imposition of the Death Penalty, including any aspect of the Defendant's character or record, and any of the circumstances of the commission of the offense . . . may be sufficient to cause you to have a reasonable doubt as to whether or not the true answer to any of the Special Issues is 'Yes'; and in the event such evidence does cause you to have such a reasonable doubt, you should answer the Issue 'No.'"
Defendant's Special Requested Charge on Punishment No. One, App. 7.
"An answer of 'No' may be given to any of the [Special] Issues if"
"* * * *"
"2) . . . at least ten (10) jurors find that mitigating factors against the imposition of the Death Penalty exist, either in regard to any aspect of the Defendant's character or record or in regard to any of the circumstances of the commission of the offense . . . or"
"3) if evidence of any such mitigating factors causes at least ten (10) jurors to have a reasonable doubt as to whether the true answer to the Issues is 'Yes.'"
Id. at 8-9 (No. Two). (Texas law instructs the jury to answer the Special Issues in the negative if 10 jurors agree on the "No" answer. See App. 13.).
"You are instructed that you may answer any of the Special Issues 'No' if you find any aspect of the Defendant's character or record or any of the circumstances of the offense as factors which mitigate against the imposition of the death penalty."
Id. at 10 (No. Three).
"You are instructed that you may answer Special Issue No. One 'No' if you find any aspect of the Defendant's character or record as factors which mitigate against the imposition of the death penalty."
Id. at 11 (No. Four).
"You are instructed that you may answer Special Issue No. 2 'No' if you find any aspect of the Defendant's character or record or any of the circumstances of the offense as factors which mitigate against the imposition of the death penalty."
Id. at 12 (No. Five).
See also e.g., Cordova v. State, 733 S.W.2d 175, 189-190, and n. 3 (Tex.Crim.App.1987); Johnson v. State, 691 S.W.2d 619, 625-626 (Tex.Crim.App.1984); Stewart v. State, 686 S.W.2d 118, 121 (Tex.Crim.App.1984); Williams v. State, 674 S.W.2d 315, 322 (Tex.Crim.App.1984).
Finding a constitutional right to rely on a guilt-phase jury's "residual doubts" about innocence when the defense presents its mitigating case in the penalty phase is arguably inconsistent with the common practice of allowing penalty-only trials on remand of cases where a death sentence -- but not the underlying conviction -- is struck down on appeal. See, e.g., Scott v. State, 310 Md. 277, 301, 529 A.2d 340, 352 (1987); Stringer v. State, 500 So.2d 928, 946 (Miss.1986); Whalen v. State, 492 A.2d 552, 569 (Del.1985). Cf. Lockhart v. McCree, 476 U.S. at 476 U. S. 205 (MARSHALL, J., dissenting).
In fact, this Court has, on several previous occasions, suggested such a method of proceeding on remand. See, e.g., Hitchcock v. Dugger, 481 U. S. 393, 481 U. S. 399 (1987). Moreover, petitioner himself, in suggesting the appropriate relief in this case, asked only that he be "resentenced in a proceeding that comports with the requirements of Lockett" -- not that he be retried in full so as to have the benefit of any potential guilt-phase "residual doubts." See Brief for Petitioner 21.
In sum, we are quite doubtful that such "penalty-only" trials are violative of a defendant's Eighth Amendment rights. Yet such is the logical conclusion of petitioner's claim of a constitutional right to argue "residual doubts" to a capital sentencing jury.
Likewise, petitioner's closing argument -- the sole element of his presentation in the sentencing phase -- did not draw the jury's attention to the "residual guilt" question. The only element of the defense's lengthy closing statement that even remotely raised this issue was a brief suggestion, in the course of a general argument against the death penalty, that the jury should recognize "our inherent human fallibility . . . recognize [that] we can make a mistake." See 13 Record 2968. Otherwise, nothing in the defense's mitigating presentation sought the jury's reconsideration of petitioner's guilt in committing this crime.
See, e.g., Skipper v. South Carolina, 476 U. S. 1, 476 U. S. 4 (1986); Eddings v. Oklahoma, 455 U. S. 104, 455 U. S. 110 (1982); Lockett v. Ohio, 438 U. S. 586, 438 U. S. 604 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 304 (1976).
In describing what, arguably, the Texas Special Issue did not permit the jury to take into account with respect to petitioner's "character" and his disciplinary record, petitioner principally argues that
"Mr. Franklin's behavior in prison demonstrated that he had the strength of character to live a peaceful, productive life within the structured environment of a prison, and that, so long as he stayed in prison there was no probability that he would pose a threat to others."
Brief for Petitioner 18-19 (emphasis added).
Yet, as the State noted at argument, the question of a defendant's likelihood of injuring others in prison is precisely the question posed by the second Texas Special Issue. See Tr. of Oral Arg. 27-28.
The dissent says that the Texas scheme is infirm because it "limits the sentencer's consideration to only that mitigating evidence that bears on one or more of the Special Issues." Post at 487 U. S. 199. It is difficult to reconcile this statement with the dissent's avowed adherence to Jurek. If, as Jurek held, it is constitutional for Texas to impose a death sentence on a person whenever a jury answers both Special Issues in the affirmative -- without any other inquiry -- then surely Texas must be permitted to direct the jury's consideration of mitigating evidence to those items relevant to this undertaking.
In the final analysis, the dissent's position appears to be that the Texas capital punishment statute is unconstitutional because it does not require that the jurors be instructed that -- even though they would answer the two statutory questions "Yes" after taking account of all mitigating evidence -- they may rely on any mitigating evidence before them, although irrelevant to those two questions, as an independent basis for deciding against the death penalty. Post at 487 U. S. 199-200. Yet this is nothing more or less than a requirement that three, rather than two, Special Issues be put to the jury, the third one being:
"Does any mitigating evidence before you, whether or not relevant to the above two questions, lead you to believe that the death penalty should not be imposed?"
Such a requirement would have foreclosed the decision in Jurek, since the Texas statute upheld there did not mandate such an inquiry -- one that would be required in virtually every case where there was any suggestion of a mitigating circumstance, under the dissent's view. As we have said above, however, our cases since Jurek have not suggested that Jurek is to be overruled or modified. Our differences with the dissent are therefore clear enough: notwithstanding its stated adherence to Jurek, the dissent would revisit and overrule that precedent; we decline to do so.
See, e.g., Lowenfield v. Phelps, 484 U. S. 231, 484 U. S. 245-246 (1988); Lockhart v. McCree, 476 U.S. at 476 U. S. 193; Pulley v. Harris, 465 U. S. 37, 465 U. S. 48-49 (1984); Zant v. Stephens, 462 U. S. 862, 462 U. S. 875-876, n. 13 (1983); Adams v. Texas, 448 U. S. 38, 448 U. S. 46 (1980).
We also repeat our previous acknowledgment, that -- as a practical matter -- a Texas capital jury deliberating over the Special Issues is aware of the consequences of its answers, and is likely to weigh mitigating evidence as it formulates these answers in a manner similar to that employed by capital juries in "pure balancing" States. See Adams v. Texas, supra, at 448 U. S. 46. Thus, the differences between the two systems may be even less than it appears at first examination.
*****
JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN joins, concurring in the judgment.
Petitioner was sentenced to death by a jury that was permitted to express its views on punishment only by answering two questions: (1) Did petitioner murder the victim deliberately? and (2) Is there a probability that he will pose a continuing threat to society? We must decide whether this capital sentencing scheme unconstitutionally limited the jury's ability to give mitigating effect to evidence of petitioner's prison record or to "residual doubts" about his guilt.
The plurality concludes that the jury's consideration of petitioner's prison record and of its "residual doubts" about his guilt was not limited in this case, but nevertheless goes on to suggest that a State may constitutionally limit the ability of the sentencing authority to give effect to mitigating evidence relevant to a defendant's character or background or to the circumstances of the offense that mitigates against the death penalty. Ante at 487 U. S. 179, 487 U. S. 180, n. 10. Unlike the plurality, I have doubts about a scheme that is limited in such a fashion. I write separately to express those doubts, and to explain my reasons for concurring in the judgment.
In Jurek v. Texas, 428 U. S. 262 (1976), this Court held that the Texas capital sentencing procedures satisfied the Eighth Amendment requirement that the sentencer be allowed to consider circumstances mitigating against capital punishment. The Court observed that, even though the statute
did not explicitly mention mitigating circumstances, the Texas Court of Criminal Appeals had construed the special verdict question regarding the defendant's future dangerousness to permit jury consideration of the defendant's prior criminal record, age, mental state, and the circumstances of the crime in mitigation. Id. at 428 U. S. 271-273. Since the decision in Jurek, we have emphasized that the Constitution guarantees a defendant facing a possible death sentence not only the right to introduce evidence mitigating against the death penalty but also the right to consideration of that evidence by the sentencing authority. Lockett v. Ohio, 438 U. S. 586 (1978), established that a State may not prevent the capital sentencing authority
"from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation."
Id. at 438 U. S. 605 (plurality opinion). We reaffirmed this conclusion in Eddings v. Oklahoma, 455 U. S. 104 (1982), and in Hitchcock v. Dugger, 481 U. S. 393 (1987).
In my view, the principle underlying Lockett, Eddings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant.
"[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. . . . Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime."
California v. Brown, 479 U. S. 538, 479 U. S. 545 (1987) (O'CONNOR, J., concurring) (emphasis in original). In light of this principle it is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant's background or character or the circumstances of the offense that mitigates against
the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration.
Under the sentencing procedure followed in this case, the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant's future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its "reasoned moral response" to that evidence. If this were such a case, then we would have to decide whether the jury's inability to give effect to that evidence amounted to an Eighth Amendment violation. In my view, however, this is not such a case. The only mitigating evidence introduced by petitioner was the stipulation that he had no record of disciplinary violations while in prison. It is undisputed that the jury was free to give mitigating effect to this evidence in answering the special verdict question regarding future dangerousness. While it is true that the jury was prevented from giving mitigating effect to the stipulation to the extent that it demonstrated positive character traits other than the ability to exist in prison without endangering jailers or fellow inmates, that limitation has no practical or constitutional significance, in my view, because the stipulation had no relevance to any other aspect of petitioner's character. Nothing in Lockett or Eddings requires that the sentencing authority be permitted to give effect to evidence
beyond the extent to which it is relevant to the defendant's character or background or the circumstances of the offense. Lockett, supra, at 438 U. S. 604, n. 12 ("Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense"); Eddings, supra, at 455 U. S. 114 (holding that the sentencer must consider "any relevant mitigating evidence") (emphasis added).
The limited probative value of the stipulation regarding petitioner's lack of prison disciplinary violations is best illustrated by the contrasting examples of probative character evidence suggested by the dissent. See post at 487 U. S. 190. Evidence of voluntary service, kindness to others, or of religious devotion might demonstrate positive character traits that might mitigate against the death penalty. Although petitioner argued to the sentencing jury that his prison record demonstrated his lack of future dangerousness, petitioner did not suggest that his lack of disciplinary violations revealed anything more positive about his character than that. See 13 Record 2963-2965. This is not surprising, because the lack of a prison disciplinary record reveals nothing about a defendant's character except that the defendant can exist in the highly structured environment of a prison without endangering others.
The conclusion that petitioner was not prejudiced by the limitation placed on the jury's consideration of the mitigating evidence he introduced is entirely consistent with our decision in Skipper v. South Carolina, 476 U. S. 1 (1986). In Skipper, we vacated a death sentence because
"it appear[ed] reasonably likely that the exclusion of evidence bearing upon petitioner's behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury's decision to impose the death sentence."
Id. at 476 U. S. 8. In the case before us, the State did not interfere with petitioner's presentation of evidence regarding his lack of future dangerousness or with the jury's ability to give effect to that evidence.
Unlike the defendant in Skipper, petitioner suffered no prejudice from the limitations placed on the jury's ability to consider and give effect to mitigating evidence regarding his character.
Petitioner also contends that the sentencing procedures followed in his case prevented the jury from considering, in mitigation of sentence, any "residual doubts" it might have had about his guilt. Petitioner uses the phrase "residual doubts" to refer to doubts that may have lingered in the minds of jurors who were convinced of his guilt beyond a reasonable doubt, but who were not absolutely certain of his guilt. Brief for Petitioner 14. The plurality and dissent reject petitioner's "residual doubt" claim because they conclude that the special verdict questions did not prevent the jury from giving mitigating effect to its "residual doubt[s]" about petitioner's guilt. See ante at 487 U. S. 175; post at 487 U. S. 189. This conclusion is open to question, however. Although the jury was permitted to consider evidence presented at the guilt phase in the course of answering the special verdict questions, the jury was specifically instructed to decide whether the evidence supported affirmative answers to the special questions "beyond a reasonable doubt." App. 15 (emphasis added). Because of this instruction, the jury might not have thought that, in sentencing petitioner, it was free to demand proof of his guilt beyond all doubt.
see Lockhart v. McCree, 476 U. S. 162, 476 U. S. 181 (1986), but we have never indicated that the Eighth Amendment requires States to adopt such procedures. To the contrary, as the plurality points out, we have approved capital sentencing procedures that preclude consideration by the sentencing body of "residual doubts" about guilt. See ante at 487 U. S. 173, n. 6.
Our decisions mandating jury consideration of mitigating circumstances provide no support for petitioner's claim, because "residual doubt" about guilt is not a mitigating circumstance. We have defined mitigating circumstances as facts about the defendant's character or background, or the circumstances of the particular offense, that may call for a penalty less than death. See California v. Brown, 479 U.S. at 479 U. S. 541; id. at 479 U. S. 544 (O'CONNOR, J., concurring); Eddings, 455 U.S. at 455 U. S. 110, 455 U. S. 112; id. at 455 U. S. 117 (O'CONNOR, J., concurring); Lockett, 438 U.S. at 438 U. S. 605. "Residual doubt" is not a fact about the defendant or the circumstances of the crime. It is, instead, a lingering uncertainty about facts, a state of mind that exists somewhere between "beyond a reasonable doubt" and "absolute certainty." Petitioner's "residual doubt" claim is that the States must permit capital sentencing bodies to demand proof of guilt to "an absolute certainty" before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing.
In sum, I agree with the plurality's conclusion that, on the facts of this case, the Texas capital sentencing procedure did not prevent the sentencing jury from giving mitigating effect to any evidence relevant to petitioner's character or background or to the circumstances of the offense. Moreover, while the capital sentencing procedure may have prevented the jury from giving effect to any "residual doubts" it might have had about petitioner's guilt, this aspect of Texas procedure violated no Eighth Amendment guarantee. For these reasons, I concur in the judgment.
*****
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
The plurality's opinion discusses three subjects. In Part II-A, the plurality explains why in this case there was no interference with any right petitioner may have had under the Eighth Amendment to have the jury consider "residual doubt" in making its sentencing determination. I do not disagree with that conclusion. In Part II-B, the plurality concludes that evidence concerning petitioner's good behavior in prison is relevant to the sentencing determination only insofar as it may shed light on his future behavior. I disagree with that conclusion. Finally, in the last paragraph of Part II-B and in Part III, the plurality makes general comments on the Texas capital sentencing scheme. I shall begin with a discussion of the relevance of petitioner's mitigating evidence and an explanation of why, under the Texas sentencing scheme, the failure to give instructions similar to those requested by petitioner prevented the jury from giving that evidence independent mitigating weight. I will then comment on the portion of the plurality's opinion that seems to imply that it is permissible to "channel jury discretion in capital sentencing" by foreclosing the jury's consideration of relevant mitigating evidence.
I
rather than to death, would adequately protect society from future acts of violence by petitioner. The evidence was admissible for both purposes.
In Skipper v. South Carolina, 476 U. S. 1 (1986), the State argued that evidence of good behavior in prison could be excluded when offered to show the defendant's "future adaptability to prison life" id. at 476 U. S. 6 (emphasis in original), even though it could properly be admitted to prove "past good conduct in jail for purposes of establishing his good character." Ibid. We rejected that distinction as a basis for excluding this type of evidence. Implicitly, the Court held that the evidence must be admitted not only for its relevance to the defendant's character and past history, but also for its relevance to a prediction about his future behavior.
Ironically, today the plurality turns the Court's decision in Skipper on end. The plurality holds that no special instruction was needed to allow the jury to give adequate weight to the evidence of petitioner's good conduct in prison, because that evidence had no relevance except insofar as it shed light on petitioner's probable future conduct. The plurality is quite wrong. Past conduct often provides insights into a person's character that will evoke a merciful response to a demand for the ultimate punishment even though it may shed no light on what may happen in the future. Evidence of past good behavior in prison is relevant in this respect, just as is evidence of honorable military service or kindness to those in the defendant's community or regular church attendance. Although it may aid the sentencer in predicting the defendant's future conduct, it also tells the sentencer something about the defendant's personality. Importantly, for example, it may suggest that the conduct of which the defendant stands convicted was not in keeping with his or her usual qualities or traits, a fact that has as much relevance to culpability as to future dangerousness. Further, the evidence of petitioner's past prison conduct was relevant to show the appropriateness of the alternative punishment of imprisonment
for him, another reflection of his character. Thus evidence of petitioner's conduct in prison "encompassed . . . more than [just] those matters . . . considered by the jury when it was asked to answer the second Special Issue," ante at 487 U. S. 178, which asked only if there was a probability that petitioner would commit future criminal acts of violence.
"The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special 'need for reliability in the determination that death is the appropriate punishment' in any capital case."
Johnson v. Mississippi, 486 U. S. 578, 486 U. S. 584 (1988). For that reason, when it is
"considering whether to impose a death sentence, the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it."
Jurek v. Texas, 428 U. S. 262, 428 U. S. 273 (1976) (joint opinion). If mitigating evidence is relevant to the sentencing determination, a defendant has a right to have the jury consider it even if an appellate court may question its weight.
Our cases explicating the role of mitigating evidence in capital sentencing have rigorously enforced one simple rule: a sentencing jury must be given the authority to reject imposition of the death penalty on the basis of any evidence relevant to the defendant's character or record or the circumstances of the offense proffered by the defendant in support of a sentence less than death. That rule does not merely require that the jury be allowed to hear any such evidence the defendant desires to introduce, Skipper v. South Carolina, 476 U.S. at 476 U. S. 4; Hitchcock v. Dugger, 481 U. S. 393, 481 U. S. 394 (1987), it also requires that the jury be allowed to give "independent mitigating weight" to the evidence. Lockett v. Ohio, 438 U. S. 586, 438 U. S. 605 (1978); [Footnote 2/1] 455 U. S. 112-113 (1982). We therefore consistently have condemned the erection of barriers to the jury's full consideration of mitigating evidence without regard to the device by which the barrier was created. Mills v. Maryland, 486 U. S. 367, 486 U. S. 375 (1988); see Lockett v. Ohio, 438 U.S. at 438 U. S. 586 (statute); Hitchcock v. Dugger, 481 U.S. at 481 U. S. 398-399 (same); by the sentencing court, Eddings v. Oklahoma, 455 U.S. at 455 U. S. 104 (sentencing court decision); Skipper v. South Carolina,@ 476 U.S. at 476 U. S. 1 (evidentiary ruling).
On its face, the Texas capital sentencing scheme makes no mention of mitigating evidence. Jurek, 428 U.S. at 428 U. S. 272. Instead it merely asks the jury to give a "yes" or "no" answer to two, and in some instances three, "Special Issues." Here, the jury was instructed to answer "yes" to the first Special Issue if it found that petitioner acted "deliberately" and "with the reasonable expectation that [her] death . . . would result" when he assaulted Ms. Moran, and "yes" to the second Special Issue if it found a probability that petitioner "would commit criminal acts of violence that would constitute a continuing threat to society." See ante at 487 U. S. 168-169, and n. 3. Although the jury was informed that, if it answered both issues "yes," petitioner would be sentenced to death, neither of the Special Issues as they would have been understood by reasonable jurors gave the jury the opportunity to consider petitioner's mitigating evidence of past good conduct in prison to the extent that it encompassed matters beyond those relevant to answering the Special Issues. Petitioner therefore was at least entitled to an instruction informing the jury that it could answer one of the issues "no" if it found by that evidence that petitioner's character was such that he should not be subjected to the ultimate penalty. The failure to give such an instruction removed that evidence from the sentencer's
consideration just as effectively as would have an instruction informing the jury that petitioner's character was irrelevant to its sentencing decision.
The plurality errs in suggesting that, under our precedents, Texas may "structur[e]" or "giv[e] shape", ante at 487 U. S. 179, to the jury's consideration of character as a mitigating factor by defining character to include only that evidence that reflects on future dangerousness, ante at 487 U. S. 177-178. The notion that a State may permissibly provide such a "framework" for the sentencer's discharge of its "awesome power," ante at 487 U. S. 179, is inconsistent with our holdings in Lockett and Hitchcock that a State may not limit the sentencer's consideration to certain enumerated mitigating factors. There is no constitutionally meaningful distinction between allowing the jury to hear all the evidence the defendant would like to introduce and then telling the jury to consider that evidence only to the extent that it is probative of one of the enumerated mitigating circumstances, which we held unconstitutional in both Lockett and Hitchcock, and allowing the jury to hear whatever evidence the defendant would like to introduce and then telling the jury to consider that evidence only to the extent that it is probative of future dangerousness, which the plurality here finds constitutional.
Petitioner does not contend that the jury required special instructions in order to give complete consideration to any mitigating evidence that was relevant to whether he acted deliberately or to whether he constituted a future threat to society. His argument is limited to the rather simple truism that, absent some instruction, given the structure of the Texas scheme, it is probable that the jury misapprehended the significance it could attach to mitigating evidence that was descriptive of petitioner's character, rather than predictive of his future behavior. The instructions he sought would only have informed the jury that it could answer either or both of the Special Issues "no" if it found that the mitigating evidence justified a sentence less than death -- whether or
not that evidence was relevant to deliberateness or future dangerousness -- authority the jury assuredly had under the Constitution and under the Texas sentencing scheme as we have previously construed it. See Jurek, 428 U.S. at 428 U. S. 273; Adams v. Texas, 448 U. S. 38, 448 U. S. 46 (1980). Although it is remotely possible that the jury that sentenced petitioner intuitively understood that possibility, the Constitution does not permit us to take the risk that the jury did not give full consideration to the mitigating evidence petitioner introduced. Mills v. Maryland, 486 U.S. at 486 U. S. 383-384. Under our cases, the substantial risk that the jury failed to perceive the full ambit of consideration to which evidence of petitioner's past good conduct was entitled requires us to vacate the death sentence and remand for resentencing. Id. at 486 U. S. 384; Eddings, 455 U.S. at 455 U. S. 119 (O'CONNOR, J., concurring). Chief Justice Burger's words in Lockett apply fully and determinately to the case before us:
"There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute [or evidentiary rule or jury instruction] that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments."
438 U.S. at 438 U. S. 605.
constitutionality of the Texas statute in that case is, of course, entirely irrelevant here. As the plurality recognizes, ante at 487 U. S. 171, petitioner has not raised a challenge to the constitutionality of the Texas sentencing scheme. Rather, he has merely asserted that the trial court's failure to give the jury instructions he requested was constitutional error.
Our holding in Lockett previously has required us to vacate death sentences that were imposed pursuant to facially valid capital sentencing statutes. In Eddings v. Oklahoma, although the statute provided that a defendant could present evidence "as to any mitigating circumstances," 455 U.S. at 455 U. S. 115, n. 10, we set aside the death sentence because it appeared that the trial judge had not considered certain mitigating evidence offered by defendant. See id. at 455 U. S. 112-113. In Hitchcock, 481 U.S. at 481 U. S. 398-399, even though we had sustained the Florida capital sentencing statute against a facial attack in Proffitt v. Florida, 428 U. S. 242 (1976), we held that a Florida death sentence could not stand because the advisory jury had been instructed not to consider nonstatutory mitigating circumstances. The instant case is analogous; our decision in Jurek v. Texas, upholding the facial validity of the statute under which petitioner was sentenced to death, is not dispositive of the question whether his Eighth Amendment rights were violated because the sentencer was, in effect, instructed not to consider certain relevant mitigating evidence.
After referring to "tension" between our cases holding that the sentencer's discretion in capital sentencing must be "directed and limited so as to minimize the risk of wholly arbitrary and capricious action," Gregg v. Georgia, 428 U. S. 153, 428 U. S. 189 (1976), and our cases holding that the jury must be permitted to consider any relevant mitigating evidence adduced by the defendant, see Eddings v. Oklahoma, the plurality suggests that our holding in Jurek was premised on a recognition that Texas' scheme accommodated that tension. See
ante at 487 U. S. 182. To the contrary, our holding in Jurek did not turn on an understanding that the Special Issues performed a narrowing function; rather our concern there, as it is here, was whether the Special Issues interfered with the jury's full consideration of mitigating evidence.
Instead of employing a list of aggravating circumstances to limit the scope of the jury's power to impose the death penalty, the Texas scheme defines the offense of capital murder in a manner that narrows the class. See Lowenfield v. Phelps, 484 U. S. 231, 484 U. S. 245-246 (1988). This point was explained with some care in our opinion in Jurek:
"The Texas Court of Criminal Appeals has thus far affirmed only two judgments imposing death sentences under its post-Furman law -- in this case and in Smith v. State, No. 49,809 (Feb. 18, 1976). . . . In the present case, the state appellate court noted that its law"
"limits the circumstances under which the State may seek the death penalty to a small group of narrowly defined and particularly brutal offenses. This insures that the death penalty will only be imposed for the most serious crimes [and] . . . that [it] will only be imposed for the same type of offenses which occur under the same types of circumstances."
"522 S.W.2d at 939."
"While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty, as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. See McGautha v. California, 402 U. S. 183, 402 U. S. 206 n. 16 (1971); Model Penal Code § 201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating
circumstances. For example, the Texas statute requires the jury, at the guilt-determining stage, to consider whether the crime was committed in the course of a particular felony, whether it was committed for hire, or whether the defendant was an inmate of a penal institution at the time of its commission. Cf. Gregg v. Georgia, ante at 428 U. S. 165-166, n. 9; Proffitt v. Florida, ante at 428 U. S. 248-249, n. 6. Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option -- even potentially -- for a smaller class of murders in Texas. Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime."
428 U.S. at 428 U. S. 270-271.
Having approved the manner in which the Texas statute narrowed the class of murders for which the death sentence could be imposed, we confronted directly the question whether the Texas statute was nevertheless invalid because the Special Issues might interfere with the requirement that the jury must be allowed to consider "all relevant evidence" offered to demonstrate why the death penalty "should not be imposed." [Footnote 2/2] Although the Texas Court of Criminal Appeals had not yet precisely defined the meanings of the terms used in the Special Issues, we understood the two decided cases on the question to indicate that the jury would be given a full opportunity "to consider whatever evidence of mitigating circumstances the defense can bring before it." Id. at 428 U. S. 273. Thus, nothing in Jurek implies that the Special Issues could
be used to curtail the defendant's right to have the sentencing decision made on the basis of all relevant mitigating evidence.
It is important to recognize that our holdings that the jury must be given the opportunity to consider, for whatever weight it might bear, any evidence relevant to a defendant's character or record or the circumstances of the offense do not give rise to the danger of arbitrary, capricious, and discriminatory decisionmaking that attends the vesting of unbridled discretion in the sentencer. We recognized this fact in Gregg v. Georgia, when we upheld Georgia's sentencing scheme against an Eighth Amendment challenge. The Georgia scheme permitted the jury to consider all mitigating evidence the defendant wished to introduce, but our decision nowhere suggested that, in so doing, the statute failed sufficiently to narrow and guide the discretion of the sentencer. We specifically noted that the existence of discretion to remove a particular defendant from the class of persons on whom death may be imposed did not offend the Constitution, see 428 U.S. at 428 U. S. 199, 428 U. S. 203; this is especially so when the sentencer is directed to exercise that discretion on the basis of evidence related to the defendant's crime or record or the circumstances of the offense. As JUSTICE WHITE stated:
"The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate, as they are in Georgia by reason of the aggravating circumstance requirement, it becomes reasonable to expect that juries -- even given discretion not to impose the death penalty -- will impose the death penalty
in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly, or so infrequently that it loses its usefulness as a sentencing device."
Id. at 428 U. S. 222 (opinion concurring in judgment)
In requiring that the discretion of the sentencer in capital sentencing be guided, we have never suggested that the sentencer's discretion could be guided by blinding it to relevant evidence. The hallmark of a sentencing scheme that sufficiently guides and directs the sentencer is the presence of procedures that "require the jury to consider the circumstances of the crime and the criminal before it recommends sentence." Id. at 428 U. S. 197. The requirement that the State not bar the sentencer from considering any mitigating aspect of the offense or the offender only furthers the goal of focusing the sentencer's attention on the defendant and the particular circumstances of the crime.
If, as the plurality suggests, see ante at 487 U. S. 182, the Texas scheme limits the sentencer's consideration to only that mitigating evidence that bears on one or more of the Special Issues, then it is constitutionally infirm. The requirement that the sentencer's discretion be guided and channeled was intended to enlighten the jury's decisionmaking process, not to license the States to place blinders on juries. A scheme that permitted the sentencer to disregard evidence relevant to an understanding of the crime and the person who committed it would create tension with our cases requiring that the sentencing scheme be one that focuses the sentencer's attention on such evidence, and with our cases requiring that the sentencer be permitted to consider all relevant mitigating evidence.
The joint opinion in Jurek reflects our concern about whether the Texas scheme would allow the jury to give proper weight to mitigating evidence. The Court merely found it reasonable to rely on evidence that the Special Issues
"were written to direct and guide the jury's deliberations and
to focus their attention . . . upon the presence of any possible mitigating factors,"
Brief for Respondent in Jurek v. Texas, O.T. 1975, No. 5394, p. 26 (emphasis added), and that the Texas Court of Criminal Appeals had interpreted the second Special Issue to allow the jury "to consider whatever evidence of mitigating circumstances the defense can bring before it." Jurek, 428 U.S. at 428 U. S. 273.
As we said in Jurek:
"What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced."
Id. at 428 U. S. 276. The essential requirement we found satisfied in Jurek was not met in this case. If the Texas scheme is as we found it to be in Jurek, this shortcoming was merely the result of an error in instructing the jury. No matter what the ultimate cause is determined to be, however, it is clear that petitioner's Eighth Amendment rights were violated, and that the violation would not have occurred had the trial court given the jury the instructions sought by petitioner.
I respectfully dissent.
*****
Although only four Members of the Court joined the entire opinion written by Chief Justice Burger in Lockett, it has the same precedential value as a Court opinion, because JUSTICE MARSHALL's vote to set aside the death penalty rested on a broader ground than did the plurality's. See Marks v. United States, 430 U. S. 188, 430 U. S. 193 (1977) (when no single rationale supporting the result commands a majority of the Court, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds").
As we emphasized:
"A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed."
428 U.S. at 428 U. S. 271.