SMITH v. TEXAS

PER CURIAM.

Petitioner LaRoyce Lathair Smith was convicted of capital murder and sentenced to death by a jury in Dallas County, Texas. Before the jury reached its sentence, the trial judge issued a supplemental "nullification instruction." Ex parte Smith, 132 S.W.3d 407, 409 (Tex. Crim. App. 2004). That instruction directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness. In Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), we held a similar "nullification instruction" constitutionally inadequate because it did not allow the jury to give "`full consideration and full effect to mitigating circumstances'" in choosing the defendant's appropriate sentence. Id., at 797 (quoting Johnson v. Texas, 509 U.S. 350, 381 (1993) (O'CONNOR, J., dissenting)). Despite our holding in Penry II, the Texas Court of Criminal Appeals rejected petitioner's request for postconviction relief. The court reasoned that the instruction either was irrelevant because petitioner did not proffer "constitutionally significant" mitigation evidence, or was sufficiently distinguishable from the instruction in Penry II to survive constitutional scrutiny. 132 S. W. 3d, at 413, n. 21. We grant the petition for certiorari and petitioner's motion for leave to proceed in forma pauperis, and reverse.

I

In 1991, petitioner was convicted of brutally murdering one of his former co-workers at a Taco Bell in Dallas County. The victim and one of her co-workers were closing down the restaurant when petitioner and several friends asked to be let in to use the telephone. The two employees recognized petitioner and let him in. Petitioner then told his former co-workers to leave because he wanted to rob the restaurant. When they did not leave, petitioner killed one co-worker by pistol-whipping her and shooting her in the back. Petitioner also threatened, but did not harm, his other former co-worker before exiting with his friends. The jury found petitioner guilty of capital murder beyond a reasonable doubt.

At the punishment phase, the jury was instructed on two special issues: first, whether the killing was deliberate; and second, whether the defendant posed a continuing danger to others.1 Approximately two years prior to the trial, we had held that presenting only these two special issues, without additional instructions regarding the jury's duty to consider mitigation evidence, violated the Eighth Amendment. Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (Penry I). Shortly after petitioner's trial, the Texas Legislature amended its capital sentencing scheme to require juries to take "into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant" in deciding whether there are sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Penry II, supra, at 803 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001)). Petitioner, however, did not receive the benefit of the new statutory instruction at his trial. Instead, just as in Penry II, petitioner was sentenced pursuant to a supplemental instruction provided to the jury by the trial judge.2 That instruction read:

Employing the framework of special issues modified by the supplemental nullification instruction, the jury considered a variety of mitigation evidence. Petitioner presented evidence that (1) he had been diagnosed with potentially organic learning disabilities and speech handicaps at an early age; (2) he had a verbal IQ score of 75 and a full IQ of 78 and, as a result, had been in special education classes throughout most of his time in school; (3) despite his low IQ and learning disabilities, his behavior at school was often exemplary; (4) his father was a drug addict who was involved with gang violence and other criminal activities, and regularly stole money from family members to support a drug addiction; and (5) he was only 19 when he committed the crime.

In response, the prosecution submitted evidence demonstrating that petitioner acted deliberately and cruelly. The prosecution emphasized that petitioner knew his victim, yet stabbed her repeatedly in numerous places on her body. With respect to petitioner's future dangerousness, the prosecution stressed that petitioner had previously been convicted of misdemeanor assault and proffered evidence suggesting that he had violated several drug laws.

During closing arguments at the punishment phase, the prosecution reminded the jury of its duty to answer truthfully the two special issues of deliberateness and future dangerousness.

The jury verdict form tracked the final reminders the prosecution gave the jury. The form made no mention of nullification. Nor did it say anything about mitigation evidence. Instead, the verdict form asked whether petitioner committed the act deliberately and whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury was allowed to give "Yes" or "No" answers only. The jury answered both questions "Yes" and sentenced petitioner to death. App. 4 to Pet. for Cert.

On direct appeal, petitioner argued that our holding in Penry I rendered his jury instructions unconstitutional because the special issues did not allow the jury to give effect to his mitigation evidence. The Texas Court of Criminal Appeals affirmed petitioner's sentence, reasoning that the nullification instruction provided an adequate vehicle through which the jury could consider petitioner's evidence. We denied certiorari on May 15, 1995. Smith v. Texas, 514 U.S. 1112.

Petitioner filed an original writ of habeas corpus in the trial court in 1998. That suit was dismissed as untimely, but the Texas Legislature amended its criminal code in such a way as to allow petitioner to file a timely writ. Petitioner did so, claiming that his jury was instructed in violation of the Eighth Amendment. Before the Texas Court of Criminal Appeals, petitioner argued that the jury instructions in his case ran afoul of our holding in Penry II. The court denied petitioner's application on the merits. 132 S.W.3d 407 (2004).3

II

The Texas Court of Criminal Appeals issued its opinion just prior to our decision in Tennard v. Dretke, 542 U.S. 274 (2004). In Tennard, we reversed the Fifth Circuit's refusal to grant a certificate of appealability to a defendant who was sentenced under the Texas capital sentencing scheme prior to the legislative revisions which took place in the aftermath of Penry I. Tennard, relying upon Penry I, argued that Texas' two special issues — deliberateness and future dangerousness — did not allow the jury to give effect to his mitigation evidence and that the trial court's failure to issue a supplemental mitigation instruction that would allow the jury to give full effect to his evidence rendered his death sentence unconstitutional. The state court and the Fifth Circuit both held that the lack of an adequate mitigation instruction was irrelevant. The courts both determined that Tennard had failed to satisfy the Fifth Circuit's threshold standard for "`constitutionally relevant' mitigating evidence, that is, evidence of a `uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,' and evidence that `the criminal act was attributable to this severe permanent condition.'" 542 U. S., at 281 (some internal quotation marks omitted).

Our rejection of that threshold test was central to our decision to reverse in Tennard. We held that "[t]he Fifth Circuit's test has no foundation in the decisions of this Court. Neither Penry I nor its progeny screened mitigating evidence for `constitutional relevance' before considering whether the jury instructions comported with the Eighth Amendment." Id., at 284. Rather, we held that the jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a "low threshold for relevance," which is satisfied by "`"evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value."'" Id., at 284-285 (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)).

The Texas Court of Criminal Appeals relied on precisely the same "screening test" we held constitutionally inadequate in Tennard. 132 S. W. 3d, at 413 (holding that mitigation evidence requires a special instruction only when that evidence passes the threshold test of "whether the defendant's criminal act was `due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own'" (quoting Robertson v. Cockrell, 325 F.3d 243, 251 (CA5 2003) (en banc))). Employing this test, the court concluded that petitioner's low IQ and placement in special-education classes were irrelevant because they did not demonstrate that he suffered from a "severe disability." 132 S. W. 3d, at 414. But, as we explained in Tennard, "[e]vidence of significantly impaired intellectual functioning is obviously evidence that `might serve as a basis for a sentence less than death.'" 542 U. S., at 288 (some internal quotation marks omitted) (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)). There is no question that a jury might well have considered petitioner's IQ scores and history of participation in special-education classes as a reason to impose a sentence more lenient than death. Indeed, we have held that a defendant's IQ score of 79, a score slightly higher than petitioner's, constitutes relevant mitigation evidence. See Wiggins v. Smith, 539 U.S. 510, 535 (2003); cf. Tennard, supra, at 288.

The state court also held that petitioner had offered "no evidence of any link or nexus between his troubled childhood or his limited mental abilities and this capital murder." 132 S. W. 3d, at 414. We rejected the Fifth Circuit's "nexus" requirement in Tennard, supra, at 287 (noting that none of our prior opinions "suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered" and holding that the jury must be allowed the opportunity to consider Penry evidence even if the defendant cannot establish "a nexus to the crime").

That petitioner's evidence was relevant for mitigation purposes is plain under our precedents, even those predating Tennard. See, e. g., Penry I, 492 U. S., at 319-322; Payne v. Tennessee, 501 U.S. 808, 822 (1991); Boyde v. California, 494 U.S. 370, 377-378 (1990); Eddings v. Oklahoma, 455 U.S. 104, 114 (1982). The state court, however, erroneously relied on a test we never countenanced and now have unequivocally rejected. We therefore hold that the state court "assessed [petitioner's legal] claim under an improper legal standard." Tennard, supra, at 287. Because petitioner's proffered evidence was relevant, the Eighth Amendment required the trial court to empower the jury with a vehicle capable of giving effect to that evidence. Whether the "nullification instruction" satisfied that charge is the question to which we now turn.

III

The Texas Court of Criminal Appeals held that even if petitioner did proffer relevant mitigation evidence, the supplemental "nullification instruction" provided to the jury adequately allowed the jury to give effect to that evidence. The court found it significant that the supplemental instruction in this case "told the jury that it `shall' consider all mitigating evidence, even evidence unrelated to the special issues, [and] it also told the jury how to answer the special issues to give effect to that mitigation evidence." 132 S. W. 3d, at 416. The court also concluded that the nullification instruction made it clear to the jury that a "No" answer was required if it "believed that the death penalty was not warranted because of the mitigating circumstances." Ibid.

In Penry II, we held that "the key under Penry I is that the jury be able to `consider and give effect to [a defendant's mitigation] evidence in imposing sentence.'" 532 U. S., at 797 (quoting Penry I, supra, at 319); see 532 U. S., at 797 (quoting Johnson v. Texas, 509 U. S., at 381 (O'CONNOR, J., dissenting) ("`[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances'" (emphasis in Johnson))). We explained at length why the supplemental instruction employed by the Texas courts did not provide the jury with an adequate vehicle for expressing a "reasoned moral response" to all of the evidence relevant to the defendant's culpability. 532 U. S., at 796. Although there are some distinctions between the Penry II supplemental instruction and the instruction petitioner's jury received, those distinctions are constitutionally insignificant.

Penry II identified a broad and intractable problem — a problem that the state court ignored here — inherent in any requirement that the jury nullify special issues contained within a verdict form.

It is certainly true that the mandatory aspect of the nullification instruction made petitioner's instruction distinct from Penry's. Indeed, the "shall" command in the nullification instruction resolved the ambiguity inherent in the Penry II instruction, which we held was either a nullification instruction or an instruction that "`shackled and confined'" Penry's mitigating evidence within the scope of the impermissibly narrow special issues. Id., at 798. That being said, the clearer instruction given to petitioner's jury did not resolve the ethical problem described supra, at 46 and this page.4 To the contrary, the mandatory language in the charge could possibly have intensified the dilemma faced by ethical jurors. Just as in Penry II, petitioner's jury was required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. And just as in Penry II, the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented.5 Even if we were to assume that the jurors could easily and effectively have comprehended an orally delivered instruction directing them to disregard, in certain limited circumstances, a mandatory written instruction given at a later occasion, that would not change the fact that the "jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence." Penry II, 532 U. S., at 801.

There is no principled distinction, for Eighth Amendment purposes, between the instruction given to petitioner's jury and the instruction in Penry II. Petitioner's evidence was relevant mitigation evidence for the jury under Tennard and Penry I. We therefore hold that the nullification instruction was constitutionally inadequate under Penry II. The judgment of the Texas Court of Criminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.

I would affirm the judgment of the Texas Court of Criminal Appeals. See Walton v. Arizona, 497 U.S. 639, 673 (1990) (SCALIA, J., concurring in part and concurring in judgment).