Opinion · Supreme Court of the United States

Delo v. Lashley

113 S. Ct. 1222

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1993-04-26
Topic
general

concluding that “[n]othing in the Constitution obligates state courts to give mitigating circumstance instructions when no evidence is offered to support them” | noting that an instruction is warranted only when there is a genuine danger that the jury will convict based on something other than the lawful evidence proved beyond a reasonable doubt | “Nothing in the Constitution obligates state courts to give mitigating circumstantial instructions when no evidence is offered to support them.” | "Nothing in the Constitution obligates state courts to give mitigating circumstantial instructions when no evidence is offered to support them." | "The presumption [of innocence] 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." | "[W]e have said that to comply with due process state trial courts need to give jury instructions in capital cases only if the evidence so warrants." | burden of proof of mitigating circumstances may be put on the defendant in a capital sentencing | “Once the defendant has been convicted fairly in the guilt phase of the trial, the presumption of innocence disappears.” | “Once the defendant has been convicted fairly in the guilt phase of [a capital] trial, the presumption of innocence disappears.” | Walton establishes “that a State may require the defendant ‘to bear the risk of nonpersuasion as to the existence of mitigating circumstances.’ ” | “Once the defendant has been convicted fairly in the guilt phase of [a capital] trial, the presumption of innocence disappears.” | “Once the defendant has been convicted fairly in the guilt phase of [a capital] trial, the presumption of innocence disappears.” | “Once the defendant has been convicted fairly in the guilt phase of [a capital] trial, the presumption of innocence disappears.” | instruction is constitutionally required only when there is genuine danger that jury will convict based on something other than lawful evidence proved beyond reasonable doubt | “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.” | “[W]e have said that to comply with due process state trial courts need to give jury instructions in capital cases only if the evidence so warrants.”

Citator

Authority status
caution
Cited by
69 opinions
DELO v. LASHLEY,507 U.S. 272(1993)
113 S.Ct. 1222
DELO, SUPERINTENDENT, POTOSI CORRECTION CENTERv. LASHLEY
No. 92-409
Decided March 8, 1993
During the penalty phase of respondent Lashley's capital murder trial, his counsel requested that the jury be instructed on the mitigating circumstance that Lashley had no significant criminal history. However, when neither Lashley's counsel nor the prosecutor presented proof of the mitigating circumstance, the trial judge refused to give the requested instruction and Lashley was sentenced to death. Subsequently a Federal District Court dismissed Lashley's habeas petition, rejecting his claim that the state judge's failure to give the instruction violated due process. The Court of Appeals granted relief, holding that this Court's decision inLockett v. Ohio,438 U.S. 586, required the State, which was in a peculiarly advantageous position to show a significant prior criminal history, to come forward with evidence or else the court must instruct the jury on the mitigating circumstance.Held:State courts are not obligated by the Constitution 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. States are not better positioned than defendants to adduce evidence of a defendant's own criminal history. Assuming,arguendo, that a presumption of innocence of other crimes did attach at Lashley's sentencing, he still was not constitutionally entitled to a "presumption of innocence" instruction.

Certiorari granted;957 F.2d 1495, reversed.
PER CURIAM.fn*a
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. AnPage 273adult 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. SeeLashley 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 afterPage 274attaining adult status.fn*State v. Lashley,667 S.W.2d 712,716(Mo.), cert. denied,469 U.S. 873(1984); see also667 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(1984); see alsoState 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, grantedPage 275relief.Lashley v. Armontrout,957 F.2d 1495(1992). The Court of Appeals thought that the trial judge's ruling violated theEighth AmendmentunderLockett v. Ohio,438 U.S. 586(1978). In the majority's view,Lockettrequires 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, seeid. 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 offensethat the defendantproffersas a basis for a sentence less than death.Lockett, supra,438 U.S. 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 alsoPenry, supra,492 U.S. 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 evidenceintroduced 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. SeeHopper v. Evans,456 U.S. 605,611(1982). And, answering a question expressly reserved inLockett, we recently made clear that a State may require the defendant "`to bear the risk of nonpersuasion as to the existence of mitigating circumstances.'"Page 276Walton v. Arizona,497 U.S. 639,650(1990) (plurality opinion) (quotingLockett, supra,438 U.S. at 609, n. 16); see also497 U.S. at 669-673(SCALIA J., concurring in part and concurring in judgment) (rejectingLockett). InWalton, 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, 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 toWalton, other lower courts rejected arguments similar to Lashley's. For example, inState 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 alsoHutchins 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). InDeLuna v.Lynaugh,890 F.2d 720(1989), the Fifth Circuit held that a capital defendant was not entitled to a mitigating instruction underPenrybecause he had made a "tactical decision" not to introduce supporting evidence that would have "opened the door to the introduction in evidencePage 277of 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(1991).

In short, until the Court of Appeals' decision in this case, it appears that lower courts consistently applied the principles established byLockettand 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 demandproofthat 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,postat 288, 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' 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 anyPage 278presentence report that is created is available to both the government and the defense. In this case, Lashley has not suggested that he was unable to offer his presentence report as evidence that his prior criminal record was insignificant. Moreover, the statutory mitigating circumstance refers not to arrests or convictions, but more broadly to "criminal activity." To the extent that this includes criminal conduct that has not resulted in formal charges, no one is better able than the defendant to make the required proffer.
II
The dissent contends that this case is not about the requirements ofLockettat all, but about the "presumption of innocence."Postat 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.Kentuckyv. 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. (quotingTaylor, supra, at 488).

Once the defendant has been convicted fairly in the guilt phase of the trial, the presumption of innocence disappears.Page 279SeeHerrera v.Collins,506 U.S. 390,399(1993);id. at 443 (B. J., dissenting). We have not considered previously whether a presumption that the defendant is innocent of other crimes attaches at the sentencing phase. But even assuming that such a presumption does attach, Lashley was not entitled to a "presumption of innocence" instruction. Under our precedents, the instruction would have been constitutionally required only if the circumstances created a genuine risk that the jury would conclude, from factors other than the State's evidence, that the defendant had committed other crimes. See,e.g., Whorton, supra,441 U.S. at 788-789. Lashley does not contend that any such circumstances existed in this case. As the dissent acknowledges,postat 281, the record before the jury was completely silent on the question whether Lashley had committed prior offenses. The jury was specifically instructed that the State had the burden of proving the existence of any aggravating circumstances "beyond a reasonable doubt." Instructions Nos. 20-21, Record 77, 79 (Jan. 29, 1982). Nothing disturbed the presumption that Lashley was a first offender.

The "circumstances" on which the dissent relies,postat 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 defense 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 thejurywas to deprive it of possible testimony that Lashley lacked a criminal history. Without such testimony, the record before the jury was still silent on the question of Lashley'sPage 280criminal past. Thus, assuming,arguendo, that a presumption of innocence did attach at Lashley's sentencing, underWhorton, he was not constitutionally entitled to a "presumption of innocence" instruction.

Lashley's motion for leave to proceedin forma pauperisand 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 crimes, 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."1The 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 accurate. Yet that one vague reference may now explain the Court's willingness to reinstatePage 281respondent's death sentence without hearing argument on the merits of the novel and important constitutional question that the case presents. That question is whether the presumption of innocence (uncontradicted in any way by the prosecution) supports an instruction to the jury at sentencing that the capital defendant's lack of a significant criminal history is a factor mitigating against its imposition of the death penalty. The Court acknowledges that the defendant's testimonial assertion of innocencewouldsupport the instruction, seeanteat 277; it fails to recognize that the presumption of innocence does so as well.

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, seeanteat 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.2Speculation about his juvenile record is impermissible; state law prohibits any use of such evidence in adultPage 282criminal proceedings.3Accordingly, as the case comes to us, the record is silent on the question whether respondent led an entirely blameless life prior to this offense.

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.4In 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 anPage 283instruction explaining the statutory mitigating circumstance at issue in this case.
I
It has been settled for almost a century that the presumption of innocence, when uncontradicted, 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 aprimafaciecase, 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 inEstelle v. Williams,425 U.S. 501(1976):Page 284
"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 theFourteenth Amendmenteven 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 rulingPage 285was 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 notautomaticallyentitle a defendant to an instruction that he is presumed innocent of other offenses at the penalty phase of the trial, underWhorton, 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 inLockettv. Ohio,438 U.S. 586(1978), the comparable refusal in this case was also constitutional error requiring the vacation of respondent's death sentence.7The Court of Appeals, therefore, properly set aside a sentence of death imposed by aPage 286jury uninformed that the state legislature had expressly authorized it to withhold that sentence because the defendant had no prior criminal record.8
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 "aprima faciecase, 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 theprima faciecase established by the presumption of innocence at the sentencing phase of the trial.9Page 287

In this case, as the Court expressly acknowledges, nothing in the record "disturbed the presumption that Lashley was a first offender."Anteat 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 "asmitigatingevidence, 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).10Page 288

Because "no one is better able than the defendant to make the required proffer,"anteat 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'sFifth Amendmentprivilege against self-incrimination.11It 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 appropriate 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 moral 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 forPage 289the death penalty at all. SeeThompson v. Oklahoma,487 U.S. 815,830-831(1988) (plurality opinion).

I respectfully dissent.Page 290
  1. Page 272 JUSTICE SOUTER joins only Part I of this opinion. ↩
  2. Page 274 At the guilt phase of the trial, defense counsel moved to exclude "some confessions regarding 7 other crimes," including burglary, robbery, and stealing. Tr. 425 (Jan. 27, 1982). The motion was made not on the ground that the crimes were connected to the charged offense, cf.postat 280, n. 1, or that they were committed while Lashley was a juvenile, but because they were "extremely prejudicial" and "[ir]relevant" to Lashley's guilt or innocence of the murder. MotioninLimine, Record 143 (Jan. 21, 1982). In a pretrial conference, defense counsel specifically stated that at least one of the crimes had been committed "a week or two" before the murder — that is, when Lashley was already an adult. Tr. 425 (Jan. 27, 1982). The presentence report contains additional evidence. Under the heading "Adult Arrest Record," the report indicates that Lashley was arrested for three offenses (robbery, burglary, and stealing) the day after his arrest for the present crime. Missouri Dept. of Social Services, Div. of Probation and Parole 2 (Mar. 23, 1982). ↩
  3. Page 280 In support of a motionin liminerespondent's counsel asked the court to exclude his client's confession of crimes unrelated to the offense on trial. He argued that the State had extracted some confessions regarding 7 other crimes, a burglary second, a robbery first, stealing under, and I think it was a few more for a total of 7. One of the ones Lashley confessed to did involve the same victim's house. It was a week or two beforehand. My motion in limine is asking the Court to sustain my motion of course forbidding Mr. Bauer [the prosecutor] to bring these up. Tr. 425 (Jan. 27, 1982). ↩
  4. Page 281 Although the majority is willing to rely on these unfounded remarks, seeanteat 273-274, the State itself did not present any such evidence at respondent's trial or sentencing, and it has not suggested to us (or to any lower court) that respondent actually committed a single criminal act between his 17th birthday and the murder of his cousin.

    As the Court notes,anteat 274, n., respondent argued both that this statement was "[ir]relevant," and that "to admit the statements or written confessions into evidence would be extremely prejudicial. . . ." Motionin Limine, Record 143 (Jan. 21, 1982). Respondent was correct, of course, about the improper prejudice that would have resulted from admitting statements about alleged crimes with which he was never charged and on which the State has never relied in arguing that the instruction in question was properly withheld. It is unfortunate that respondent was spared such prejudice in the trial court only to have it reapplied (under the Court's reading of a stray comment in the record) here. ↩
  5. Page 282 The relevant Missouri statute provides:

    "1. No adjudication by the juvenile court upon the status of a child shall be deemed a conviction nor shall the adjudication operate to impose any of the civil disabilities ordinarily resulting from conviction nor shall the child be found guilty or be deemed a criminal by reason of the adjudication.

    . . . . . .

    "3. After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile courtare not lawful or proper evidenceagainst the child andshall not be used for any purpose whatsoever in any proceeding, civil orcriminal, other than proceedings under this chapter. Mo. Rev. Stat. §211.271(1978) (emphasis added). ↩
  6. Page 282 Missouri Rev. Stat. § 565.012.3(1) (1978) (current version Mo. Rev. Stat. §565.032.3(1) (Supp. 1991)) establishes the following as a statutory mitigating factor:

    "The defendant ha[d] no significant history of prior criminal activity.

    Even if the statute did not so provide, our holding inLockett v.Ohio,438 U.S. 586(1978), would require that consideration be given to that mitigating factor. ↩
  7. Page 283 "A presumption may be called "an instrument of proof," in the sense that it determines from whom evidence shall come, and it may be called something "in the nature of evidence" for the same reason; or it may be called a substitute for evidence, and even `evidence' — in the sense that it counts, at the outset, for evidence enough to make aprimafaciecase. Thayer 576. ↩
  8. Page 285 The other two members of the panel did not agree with Chief Judge Arnold's opinion that this error constituted "a separate and distinct violation of the principle ofLockett v. Ohio,438 U.S. 586. . . (1978),"957 F.2d at 1500-1501, n. 1, but they did not question his interpretation of state law. ↩
  9. Page 285 We have made it clear that procedural safeguards constitutionally required at the guilt stage of a capital trial are also required at the penalty stage.Gardner v. Florida,430 U.S. 349,358(1977) (plurality opinion) ("[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause");Estelle v. Smith,451 U.S. 454(1981) (Fifth Amendmentprivilege against self-incrimination applies at capital sentencing);Bullington v. Missouri,451 U.S. 430(1981) (Double Jeopardy Clause applies at capital sentencing). InBullington, we actually considered the same Missouri statutes that regulatedthisrespondent's capital sentencing, and held that, "[b]y enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, however, Missouriexplicitly requiresthe jury to determine whether the prosecution has `proved its case.'"Id. at 444 (emphasis in original). ↩
  10. Page 286 It is true that respondent's claim of constitutional error focused on the trial court's refusal to prohibit cross-examination about his juvenile record, and did not mention the presumption of innocence. Similarly, the Court of Appeals relied on the rationale ofLockett v.Ohio,438 U.S. 586(1978), without mentioning the presumption. Nevertheless, our jurisprudence firmly establishes that it is appropriate toaffirma judgment on a ground that was not raised below. It is manifestly unjust toreversea correct judgment and to reinstate the death penalty simply because the basis for the judgment was not adequately articulated in earlier proceedings. ↩
  11. Page 286 As the Court correctly notes, just as we have held generally that refusing to give an instruction on the presumption of innocence is not always reversible error, we have also held as a general matter that a capital defendant may be required to present evidence supporting a requested instruction on a statutory mitigating factor.Anteat 275-276. We have even held that the State may require a capital defendant to support a requested jury instruction with a preponderance of the evidence.Walton v. Arizona,497 U.S. 639(1990). But we have never held that a defendant with a presumptively clean record must present additional evidence in support Page 287 of that record to receive an instruction about it. Whether the presumption that a defendant — even a convicted capital defendant — is innocent of all other crimes is viewed as evidence in his favor or merely as a rule of evidence imposing a burden of proof on the State, it means that the State must offersomethingto disprove it. Because the State in this case offerednothingto disprove it, the instruction was constitutionally required. ↩
  12. Page 287 "We note that the Oklahoma death penalty statute permits the defendant to present evidence `as to any mitigating circumstances.' Okla. Stat., Tit.21, § 701.10(1980).Lockettrequires the sentencer to listen.Eddings v. Oklahoma,455 U.S. 104,115, n. 10 (1982). "I disagree with the suggestion in the dissent that remanding this case may serve no useful purpose. Even though the petitioner had an opportunity to present evidence in mitigation of the crime, it appears that the trial judge believed that he could not consider some of the mitigating evidence in imposing sentence. In any event, we may not speculate as to whether the trial judge and the Court of Criminal Appeals actually considered all of the mitigating factors and found them insufficient to offset the aggravating circumstances, or whether the difference between this Court's opinion and the trial court's treatment of the petitioner's evidence is `purely a matter of semantics,' as suggested by the dissent.Woodson [v.North Carolina,428 U.S. 280(1976)] andLockettrequire us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the trial court."Id., at 119 (O'CONNOR, J., concurring). ↩
  13. Page 288 TheFifth Amendmentprivilege against self-incrimination, applied against the States through theFourteenth AmendmentinMalloy v. Hogan,378 U.S. 1(1964), clearly applies at the sentencing phase of a capital trial.Estelle v. Smith,451 U.S. at 463("Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. SeeGreen v. Georgia,442 U.S. 95, (1979);Presnell v. Georgia,439 U.S. 14,16(1978);Gardner v. Florida,430 U.S. 349,357-358(1977) (plurality opinion)"). ↩