Delo v. Lashley

• Decision Date: 08 March 1993
• Docket Number: No. 92-409,92-409
• Citation: 507 U.S. 272,122 L.Ed.2d 620,113 S.Ct. 1222
• Parties: Paul DELO, Superintendent, Potosi Correctional Center, Petitioner, v. Frederick LASHLEY
• Court: U.S. Supreme Court

507 U.S. 272

113 S.Ct. 1222

122 L.Ed.2d 620

Paul DELO, Superintendent, Potosi Correctional Center, Petitioner,

v Frederick LASHLEY.

No. 92-409.

March 8, 1993.

Rehearing Denied April 26, 1993.

See U.S. , 113 S.Ct. 1962.

PER CURIAM.^*

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 adult in the eyes of Missouri law at age 17, Lashley was convicted of capital murder, Mo.Rev.Stat. § 565.001 (1978) (repealed Oct. 1, 1984), and sentenced to death. At a conference preceding the penalty phase of the trial, one of Lashley's attorneys asked the judge to instruct the jury on the mitigating circumstance that "[t]he defendant ha[d] no significant history of prior criminal activity," Mo.Rev.Stat. § 565.012.3(1) (1978) (current version Mo.Rev.Stat. § 565.032.3(1) (Supp.1991)). App. to Pet. for Cert. A-86 to A-87. Defense counsel sought this instruction even though she repeatedly asserted that she would not try to show that Lashley lacked a criminal past. Id., at A-84, A-86. At the same time, she moved for an order prohibiting the State from cross-examining defense witnesses as to Lashley's juvenile record. Id., at A-83, A-84. Such questioning may not have been permissible under Missouri law. See Mo.Rev.Stat. § 211.271 (1986). In any event, the judge did not expressly rule on the latter motion. See Lashley v. Armontrout, 957 F.2d 1495, 1501, n. 1 (1992) ("[T]he trial court was not called upon to rule in respect to the admissibility of defendant's juvenile record"). The judge did indicate, however, that Lashley would not be entitled to the requested instruction without supporting evidence. App. to Pet. for Cert. A-84, A-87.

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 attaining adult status. State v. Lashley, 667 S.W.2d 712, 716 (Mo.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); see also 677 S.W.2d, at 717 (Blackmar, J., concurring in part and dissenting in part).

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, 104 S.Ct. 2375, 80 L.Ed.2d 847 (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 due 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 relief. Lashley v. Armontrout, 957 F.2d 1495 (1992). The Court of Appeals thought that the trial judge's ruling violated the Eighth Amendment under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In the majority's view, "Lockett requires the State—which is in a peculiarly advantageous position to show a significant prior criminal history, if indeed Lashley has such a history—to come forward with evidence, or else the court must tell the jury it may consider the requested mitigating circumstance." 957 F.2d, at 1502. The court held that "the lack of any evidence whatever of Lashley's prior criminal activity entitled [him] to the requested instruction." Ibid.

As Judge Fagg explained in dissent, see id., at 1502-1504, the majority plainly misread our precedents. 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, 438 U.S., at 604, 98 S.Ct., at 2965 (plurality opinion) (emphasis added). Accord, Penry v. Lynaugh, 492 U.S. 302, 317, 109 S.Ct. 2934, 2946, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982); see also Penry, supra, 492 U.S., at 327, 109 S.Ct., at 2951 ("[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 the 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, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (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.' " Walton v. Arizona, 497 U.S. 639, 650, 110 S.Ct. 3047, 3055, 111 L.Ed.2d 511 (1990) (plurality opinion) (quoting Lockett, supra, 438 U.S., at 609, n. 16, 98 S.Ct., at 2967 n. 16); see also 497 U.S., at 669-673, 110 S.Ct., at 3065-3068 (Scalia, J., concurring in part and concurring in judgment) (rejecting Lockett ). In Walton we rejected a challenge to a state statute that imposed on capital defendants the burden of establishing the existence of mitigating circumstances by a preponderance of the evidence—a higher evidentiary standard, we note, than Missouri has adopted. Discerning no "constitutional imperative . . . that would require the [sentencer] to consider the mitigating circumstances claimed by a defendant unless the State negated them," 497 U.S., at 650, 110 S.Ct., at 3055, we concluded that "[s]o long as a State's method of allocating the burdens of proof does not lessen the State's burden . . . to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency," ibid.

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, 110 S.Ct. 1464, 108 L.Ed.2d 602 (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, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984). In DeLuna v. Lynaugh, 890 F.2d 720 (CA5 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 supporting evidence that would have "opened the door to the introduction in evidence of a prior criminal record." 890 F.2d, at 722. Accord, May v. Collins, 904 F.2d 228, 232 (CA5 1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991).

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 not 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 9, that Lashley would be required to testify in order to receive the mitigating instruction. Before 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...