DELO, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. LASHLEY
No. 92-409
Supreme Court of the United States
Decided March 8, 1993
507 U.S. 272
I
Respondent Frederick Lashley brutally beat and stabbed to death his 55-year-old, physically impaired cousin and foster mother, Janie Tracy, in the course of robbing her. An
Perhaps Lashley‘s attorneys chose not to make the necessary proffer because they feared that the prosecutor would be permitted to respond with evidence that Lashley had engaged in criminal activity as a juvenile. One of the attorneys so testified in a state collateral proceeding. Tr. 29 (Apr. 10, 1985). Or perhaps defense counsel sought to avoid opening the door to evidence that Lashley had committed other crimes as an adult. As the Missouri Supreme Court observed, the record indicates that, following his arrest, Lashley confessed to committing several other crimes after
Whatever their reasons, Lashley‘s lawyers presented no proof that he lacked a significant criminal history. Nor did the prosecutor submit any evidence that would support the mitigating circumstance. The trial judge refused to give the jury the “no significant history of prior criminal activity” instruction. The Missouri Supreme Court affirmed. It reasoned that Missouri law requires mitigating circumstance instructions to be supported by some evidence, see, e. g., State v. Battle, 661 S. W. 2d 487, 492 (Mo. 1983), cert. denied, 466 U. S. 993 (1984); see also State v. Williams, 652 S. W. 2d 102, 114 (Mo. 1983), and none was offered here. State v. Lashley, supra, at 715-716.
Lashley filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. He alleged that the trial judge‘s failure to give the requested instruction violated duе process. The District Court dismissed the claim. Lashley v. Armontrout, No. 87-897C(2) (ED Mo., June 9, 1988). A divided panel of the Court of Appeals for the Eighth Circuit, however, granted
As Judge Fagg explained in dissent, see id., at 1502-1504, the majority plainly misread our preсedents. We have held that the sentencer must be allowed to consider in mitigation “any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, supra, at 604 (plurality opinion) (emphasis added). Accord, Penry v. Lynaugh, 492 U. S. 302, 317 (1989); Eddings v. Oklahoma, 455 U. S. 104, 110 (1982); see also Penry, supra, at 327 (“[S]o long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant” (emphasis added)). But we never have suggested that the Constitution requires a state trial court to instruct the jury on mitigating circumstances in thе absence of any supporting evidence.
On the contrary, we have said that to comply with due process state courts need give jury instructions in capital cases only if the evidence so warrants. See Hopper v. Evans, 456 U. S. 605, 611 (1982). And, answering a question expressly reserved in Lockett, we recently made clear that a State may require the defendant “‘to bear the risk of nonpersuasion as to the existence of mitigating circumstances.‘”
Even prior to Walton, other lower courts rejected arguments similar to Lashley‘s. For example, in State v. Fullwood, 323 N. C. 371, 373 S. E. 2d 518 (1988), vacated and remanded on other grounds, 494 U. S. 1022 (1990), the court held that the trial judge did not err by refusing to submit to the jury a “no significant history of prior criminal activity” instruction where neither the defendant nor the State introduced evidence to support it. 323 N. C., at 394, 373 S. E. 2d, at 532; see also Hutchins v. Garrison, 724 F. 2d 1425, 1436-1437 (CA4 1983) (where defendant did not request a criminal history mitigating instruction and the record did not support it, any error resulting from failure to give the instruction was an error of state law only), cert. denied, 464 U. S. 1065 (1984). In DeLuna v. Lynaugh, 890 F. 2d 720 (1989), the Fifth Circuit held that a capital defendant was not entitled to a mitigating instruction under Penry because he had made a “tactical decision” not to introduce suрporting evidence that would have “opened the door to the introduction in evi-
In short, until the Court of Appeals’ decision in this case, it appears that lower courts consistently applied the principles established by Lockett and its progeny. Today we make explicit the clear implication of our precedents: Nothing in the Constitution obligates state courts to give mitigating circumstance instructions when no evidence is offered to support them. Because the jury heard no evidence concerning Lashley‘s prior criminal history, the trial judge did not err in refusing to give the requested instruction.
We are nоt persuaded by the Court of Appeals’ assertion that the State was uniquely situated to prove whether or not Lashley had a significant prior criminal history. As an initial matter, Missouri law does not demand proof that a mitigating circumstance exists; it requires only some supporting evidence. Lashley acknowledged in his federal habeas petition that his attorneys could have put forward some evidence that he lacked a significant prior criminal history; indeed, he contended that they were constitutionally ineffective for failing to do so. App. to Pet. for Cert. A-71. There is no reason to suppose, as the dissent suggests, post, at 288, that Lashley would be required to testify in order to receive the mitigating instruction. Bеfore the state trial court, the prosecution submitted that testimony by Lashley‘s acquaintances would suffice. App. to Pet. for Cert. A-83. On these facts, we cannot say that the State unfairly required Lashley to prove a negative.
Nor are we convinced that, as a general rule, States are better positioned than criminal defendants to adduce evidence of the defendants’ own criminal history. While the prosecution may have ready access to records of crimes committed within its own jurisdiction, the same may not be true when the defendant has committed crimes in other jurisdictions, perhaps over a period of many years. And any pre-
II
The dissent contends that this cаse is not about the requirements of Lockett at all, but about the “presumption of innocence.” Post, at 281. The question the dissent raises is indeed “novel,” ibid.; it apparently was not raised in either the District Court or the Court of Appeals, and it was not presented to this Court. Nor does the dissent‘s argument compel a different result. To be sure, we have said that “[t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U. S. 501, 503 (1976). The presumption operates at the guilt phase of a trial to remind the jury that the State has the burden of establishing every element of the offense beyond a reasonable doubt. Taylor v. Kentucky, 436 U. S. 478, 484, n. 12 (1978). But even at the guilt phase, the defendant is not entitled automatically to an instruction that he is presumed innocent of the charged offense. Kentucky v. Whorton, 441 U. S. 786, 789 (1979) (per curiam). An instruction is constitutionally required only when, in light of the totality of the circumstances, there is a “‘genuine danger‘” that the jury will convict based on something other than the State‘s lawful evidence, proved beyond a reasonable doubt. Ibid. (quoting Taylor, supra, at 488).
Once the defendant has been convicted fairly in the guilt phase of the trial, the presumption of innocence disappears.
The “circumstances” on which the dissent relies, post, at 284-285, had no bearing on the jurors’ perceptions. Lashley‘s age and the sentence to which he was subject were irrelevant to the question whether the jury might conclude improperly that he was a repeat offender. The dissent assigns special weight to the fact that defensе counsel may have decided not to introduce evidence concerning Lashley‘s prior criminal history for fear that the State would introduce Lashley‘s juvenile record. We note that, had the trial court improperly admitted evidence of Lashley‘s juvenile record, defense counsel could have objected and preserved the issue for appeal. In any event, the only impact that defense counsel‘s decision not to make the necessary proffer could have had on the jury was to deprive it of possible testimony that Lashley lacked a criminal history. Without such testimony, the rеcord before the jury was still silent on the question of Lashley‘s
Lashley‘s motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.
Thirty days after his 17th birthday, respondent entered his cousin‘s home, murdered her, and stole about $15. He was promptly arrested and made a series of confessions to the police. A portion of one of those confessions apparently referred to other сrimes, but that portion was not admitted into evidence and is not in the record. Although it seems probable that several of those “other” crimes were committed in connection with the murder, a comment by respondent‘s counsel in a pretrial conference indicates that one of them involved the same victim‘s house “a week or two beforehand.”1 The record tells us nothing about the manner in which that specific statement was elicited, the seriousness of the incident, the dates when that or any of the other incidents occurred, or even whether counsel‘s description of the statement was aсcurate. Yet that one vague reference may now explain the Court‘s willingness to reinstate re-
The question arises because the record on which the jury relied in imposing the death sentence contains no evidence of any criminal activity by respondent except the serious felony for which he has been convicted and sentenced. Speculation by appellate judges, see ante, at 273-274, about a matter that was neither available to the sentencing authority nor mentioned by the State in its petition in this Court is not a substitute for admissible evidence presented in an adversary proceeding.2 Speculation about his juvenile record is impermissible; state law prohibits any use of such evidence in adult
Missouri‘s capital sentencing statute provides that the absence of any significant history of prior criminal activity is a circumstance militating against the imposition of the death penalty.4 In Missouri, therefore—as in the many States with the same statutory mitigating factor—the jury should be so instructed when the record contains no evidence of any prior record of criminal activity.
The legal basis for the Court‘s summary disposition of this case is the general rule that a trial judge‘s instructions to the jury must normally relate to evidence in the record. That general rule, however, has no application to an instruction on the presumption of innocence in an ordinary criminal trial. In my opinion, the general rule is equally inapplicable in the capital sentencing process when the defendant requests an
I
It has been settled for almost a century that the presumption of innocence, when uncоntradicted, is an adequate substitute for affirmative evidence. In 1895 the Court held that refusing to give an instruction on the presumption of innocence was reversible error, explaining that “this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.” Coffin v. United States, 156 U. S. 432, 459. A few years later, in his landmark treatise on evidence, Professor Thayer, while noting that a presumption is not itself evidence, concluded:
“What appears to be true may be stated thus:—
“1. A presumption operates to relieve the party in whose favor it works from going forward in argument or evidence.
“2. It serves therefore the purposes of a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence.” J. Thayer, A Preliminary Treatise on Evidence at the Common Law, Appendix B, p. 575 (1898) (hereinafter Thayer).5
The presumption of innocence plays a unique role in criminal proceedings. As Chief Justice Burger explained in his opinion for the Court in Estelle v. Williams, 425 U. S. 501 (1976):
“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:
“‘The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, 156 U.S. 432, 453 (1895).” Id., at 503.
The failure to instruct the jury on the presumption may violate the Due Process Clause of the Fourteenth Amendment even when a proper instruction on the prosecution‘s burden of proving guilt beyond a reasonable doubt has been given. Taylor v. Kentucky, 436 U. S. 478 (1978). Whether the omission amounts to a constitutional violation in a noncapital case depends on “the totality of the circumstances,” Kentucky v. Whorton, 441 U. S. 786, 789 (1979). In my judgment, the instruction should always be given in a capital case.
That conclusion is not essential to my appraisal of the capital case before us today, however, because the totality of circumstances here included respondent‘s age, the sentence to which he was subject, and—of special importance—the trial judge‘s erroneous refusal to prohibit cross-examination about his juvenile record. As Chief Judge Arnold explained:
“[T]rial counsel made a reasonable effort to introduce [affirmative evidence showing that petitioner had no significant criminal history] but was prevented from doing so by an incorrect ruling of the state trial court. The court told counsel that if she insisted on offering evidence that Lashley had no criminal record, it would permit the state to counter this evidence by showing that petitioner had committed juvenile offenses. This ruling
was flatly contrary to state law.” Lashley v. Armontrout, 957 F. 2d 1495, 1500, n. 1 (CA8 1992).6
This erroneous ruling by the trial judge unquestionably explains why the record contains no specific testimony about respondent‘s prior criminal history. Even though due process may not automatically entitle a defendant to an instruction that he is presumed innocent of other offenses at the penalty phase of the trial, under Whorton, supra, the instruction should certainly be given when a trial court error is responsible for the absence of evidence supporting the instruction.
The failure to instruct the jury on the presumption of innocence at the guilt phase of respondent‘s trial—whether or not respondent had presented any evidence of his innocence—would have been constitutional error requiring reversal of his conviction. Under our holding in Lockett v. Ohio, 438 U. S. 586 (1978), the comparable refusal in this case was also constitutional error requiring the vacation of respondent‘s death sentence.7 The Court of Appeals, therefore, properly set aside a sentence of death imposed by a
II
The mitigating factor in question corresponds precisely to the presumption of innocence. When the trial record reveals no prior criminal history at all the presumption serves as “a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence,” Thayer 575, that a criminal defendant is blameless in spite of his indictment, and that even after conviction of one crime, he is presumptively innocent of all other crimes. The State cannot refute the presumption of innocence at the guilt phase of the trial without presenting any evidence that the defendant committed the act for which he was indicted; similarly, it has no basis for objecting to a mitigating instruction on the absence of a prior criminal history if it has done nothing to rebut the prima facie case established by the presumption of innocence at the sentencing phase of the trial.9
In this case, as the Court expressly acknowledges, nothing in the record “disturbed the presumption that Lashley was a first offender.” Ante, at 279. There was no danger that the “jury might conclude improperly that he was a repeat offender.” Ibid. What was lacking, however, was advice to the jury that Missouri law draws a distinction between first offenders and repeat offenders and provides that membership in one class rather than the other shall be considered a mitigating fact no matter how serious the offense committed by the defendant may be. Failure to advise the jury about the mitigating effect of his status as first offender is just as unfair as the failure to advise the jury that it should consider evidence offered by a defendant “as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence.” Penry v. Lynaugh, 492 U. S. 302, 320 (1989) (emphasis in original).10
Because “no one is better able thаn the defendant to make the required proffer,” ante, at 278, the Court considers it fair to require him to attest to his own innocence of any criminal history before the jury may be allowed to rely on the mitigating circumstance when it considers putting him to death. This suggestion is inconsistent with our refusal to allow the capital sentencing process to burden the defendant‘s Fifth Amendment privilege against self-incrimination.11 It obviously would have been constitutional error for the prosecutor or the judge to comment on the defendant‘s failure to testify at the guilt or sentencing phase of the trial; it is equally wrong to deny him an otherwise apрropriate mitigating instruction because he failed to testify.
Admittedly, my analysis of the case enables the respondent to obtain a double benefit from his youth. That he was barely 17 years old when he committed the offense is itself a mitigating circumstance; it also serves to shield any earlier misbehavior from scrutiny when his life is at stake. I believe, however, that such a double benefit is entirely appropriate when a State seeks to take the life of a young person. To deny that benefit undermines important protections that the law has traditionally provided to youthful offenders because of their lesser mоral culpability and greater potential for rehabilitation. It is doubly disturbing that the Court acts summarily in this case, thus expediting the execution of a defendant who, I firmly believe, should not be eligible for
I respectfully dissent.