Smith v. Texas

Decision Date25 April 2007
Docket NumberNo. 05–11304.,05–11304.
Citation550 U.S. 297,167 L.Ed.2d 632,127 S.Ct. 1686,75 BNA USLW 4267
PartiesLaRoyce Lathair SMITH, Petitioner, v. TEXAS.
CourtU.S. Supreme Court

OPINION TEXT STARTS HERE

Syllabus*

Smith's trial took place in the interim between Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256(Penry I), and Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9(Penry II). At that time, Texas capital juries were still given the special-issue questions found constitutionally inadequate in Penry I. Texas courts attempted to cure that inadequacy by instructing the jury that if it felt death should not be imposed but also felt the special issues satisfied, it should falsely answer “no” to one of the special-issue questions, thus nullifying the special issues. This nullification charge was later found inadequate to cure the special issues in Penry II. Before his trial, Smith objected to the constitutionality of the special issues, but his challenges were denied. At sentencing, Smith's jury received the special issues and the nullification charge. The jury sentenced Smith to death. In his appeal and postconviction state proceedings, Smith continued to argue his sentencing was unconstitutional because of the defects in the special issues. At each stage, the argument was either rejected on the merits, or else held procedurally barred because it had already been addressed on direct appeal. The Texas Court of Criminal Appeals (hereinafter appeals court) affirmed the denial of relief, distinguishing Smith's case from the Penry precedents. This Court reversed, Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303(per curiam) (Smith I), finding there was Penry error and that the nullification charge was inadequate under Penry II. On remand, the appeals court denied relief once more. Relying on its Almanza decision, it held that Smith had not preserved a Penry II challenge to the nullification charge, since he only made a Penry I challenge at trial; and that this procedural defect required him to show not merely some harm, but egregious harm, a burden he could not meet.

Held:

1. The appeals court made errors of federal law that cannot be the predicate for requiring Smith to show egregious harm. Smith I confirmed that the special issues did not meet constitutional standards and that the nullification charge did not cure that error. The basis for relief was error caused by the special issues, not some separate error caused by the nullification charge. On remand from Smith I, the appeals court mistook this Court's holding as granting relief in light of an error caused by the nullification charge and concluded that Smith had not preserved that claim because he never objected to the nullification charge. AlthoughSmith's second state habeas petition included an argument that the nullification charge itself prevented the jury from considering his mitigating evidence, that was not the only, or even the primary, argument he presented to the appeals court and this Court. The parties' post-trial filings, the state courts' judgments, and Smith I make clear that Smith challenged the special issues before trial and did not abandon or transform that claim during lengthy post-trial proceedings. Regardless of how the State now characterizes it, Smith's pretrial claim was treated by the appeals court as a Penry challenge to the adequacy of the special issues in his case, that is how this Court treated it in Smith I, and that was the error on which this Court granted relief. The appeals court's misinterpretation of federal law on remand from Smith I cannot form the basis for the imposition of an adequate and independent state procedural bar. Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53. Pp. 1696 – 1698.

2. The state courts that reviewed Smith's case did not indicate that he failed to preserve his claim that the special issues were inadequate in his case. Under the appeals court's application of Almanza, preserved error is subject only to normal harmless-error review. The appeals court has indicated elsewhere that so long as there is a reasonable likelihood the jury believed it was not permitted to consider relevant mitigating evidence, the lower Almanza standard is met. Because the state court must defer to this Court's finding of Penry error, which is a finding that there is a reasonable likelihood the jury believed it was not permitted to consider Smith's relevant mitigating evidence, Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290, it appears Smith is entitled to relief under the state harmless-error framework. Pp. 1698 – 1699.

185 S.W.3d 455, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, post, p. 1699. ALITO, J., filed a dissenting opinion, in which ROBERTS, C.J., and SCALIA and THOMAS, JJ., joined, post, p. 1699.

Jordan Steiker, Austin, TX, appointed by this Court, for petitioner.

Gene C. Schaerr, Washington, DC, for California, et al., as amicus curiae, by special leave of the Court, supporting the respondent.

Carol S. Steiker, Cambridge, MA, Maurie A. Levin, Austin, TX, Jordan M. Steiker, Counsel of Record, Austin, TX, for Petitioner.

Greg Abbott, Attorney General of Texas, Kent C. Sullivan, First Assistant Attorney General, Eric J.R. Nichols, Deputy Attorney General, for Criminal Justice, R. Ted Cruz, Solicitor General, Counsel of Record, Sean D. Jordan, Deputy Solicitor General, Adam W. Aston, Michael P. Murphy, Assistant Solicitors General, Austin, Texas, Kimberly A. Schaefer, Assistant District Attorney, Dallas County District Attorney's Office, for Respondent.

Justice KENNEDY delivered the opinion of the Court.

The jury in a Texas state court convicted petitioner LaRoyce Lathair Smith of first-degree murder and determined he should receive a death sentence. This Court now reviews a challenge to the sentencing proceeding for a second time.

The sentencing took place in the interim between our decisions in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)(Penry I), and Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001)(Penry II). In Penry I the Court addressed the special-issue questions then submitted to Texas juries to guide their sentencing determinations in capital cases. The decision held that the Texas special issues were insufficient to allow proper consideration of some forms of mitigating evidence. Following a pretrial challenge to the special issues by Smith, the trial court issued a charge instructing the jury to nullify the special issues if the mitigating evidence, taken as a whole, convinced the jury Smith did not deserve the death penalty. After Smith's trial, Penry II held a similar nullification charge insufficient to cure the flawed special issues. Smith, on state collateral review, continued to seek relief based on the inadequacy of the special issues, arguing that the nullification charge had not remedied the problem identified in his pretrial objection. The Texas Court of Criminal Appeals affirmed the denial of relief, distinguishing Smith's case from the Penry precedents. Ex parte Smith, 132 S.W.3d 407 (2004).

This Court, by summary disposition, reversed. Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004)(per curiam) (Smith I). On remand the Court of Criminal Appeals again denied Smith relief. It held, for the first time, that Smith's pretrial objections did not preserve the claim of constitutional error he asserts. Under the Texas framework for determining whether an instructional error merits reversal, the state court explained, this procedural default required Smith to show egregious harm—a burden the court held he did not meet. Ex parte Smith, 185 S.W.3d 455, 467–473 (2006). The requirement that Smith show egregious harm was predicated, we hold, on a misunderstanding of the federal right Smith asserts; and we therefore reverse.

I
A The Special Issues

Under Texas law the jury verdict form provides special-issue questions to guide the jury in determining whether the death penalty should be imposed. At the time of Smith's trial, Texas law set forth three special issues. The first addressed deliberateness; the second concerned future dangerousness;and the third asked whether the killing was an unreasonable response to provocation by the victim. Provocation was not applicable to Smith's case so the third question was not included in the instructions. If the jury answered the two applicable special-issue questions in the affirmative, the death penalty would be imposed.

In Penry I, the Court held that neither of these special-issue instructions was “broad enough to provide a vehicle for the jury to give mitigating effect” to the evidence at issue in that case. Penry II, supra, at 798, 121 S.Ct. 1910 (citing, and characterizing, Penry I, supra, at 322–325, 109 S.Ct. 2934). We refer to the inadequacy of the special-issue instructions as Penry error.”

For the brief period between Penry I and the Texas Legislature's addition of a catchall special issue, Texas courts attempted to cure Penry error with a nullification charge. In Smith's case the trial court instructed that if a juror was convinced the correct answer to each special-issue question was “yes,” but nevertheless concluded the defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue question “no.” The charge was not incorporated into the verdict form. See, e.g., 1 App. 123–124. In essence the jury was instructed to misrepresent its answer to one of the two special issues when necessary to take account of the mitigating evidence.

In Penry II, the Court concluded that a nullification charge created an ethical and logical dilemma that prevented jurors from giving effect to the mitigating evidence when the evidence was outside the scope...

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