[ Souter ]
[ Rehnquist ]
[ Thomas ]
WILLIAM ARTHUR KELLY, PETITIONER v.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
[January 9, 2002]
Justice Souter delivered the opinion of the Court.
Last Term, we reiterated the holding of Simmons v. South Carolina, 512 U.S. 154 (1994), that when a capital defendants future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.
In 1996, the State of South Carolina indicted petitioner William Kelly for an extraordinarily brutal murder, kidnaping, and armed robbery, and for possession of a knife during the commission of a violent crime. The jury convicted Kelly on all charges.
The trial then proceeded to a separate sentencing phase calling for the jury to determine whether any aggravating factor had been shown and, if so, to choose between recommendations of death or life imprisonment. The prosecutor began by telling the jurors that I hope you never in your lives again have to experience what you are experiencing right now. Being some thirty feet away from such a person. Murderer. App. 64. He went on to present testimony that while in prison, Kelly had made a knife (or shank) and had taken part in an escape attempt, even to the point of planning to draw a female guard into his cell where he would hold her hostage. See id., at 129132, 140141. The prosecutors cross-examination of a psychologist brought out evidence of Kellys sadism at an early age, see id., at 218, and his inclination to kill anyone who rubbed him the wrong way, see id., at 195.
After presentation of this evidence but before closing arguments, Kellys counsel relied on Simmons in requesting the judge to instruct the jurors that if Kelly received a sentence of life imprisonment, he would be ineligible for parole. The instruction she sought was a near-verbatim excerpt of S. C. Code Ann. §16320 (2000 Cum. Supp.):
The prosecutor objected that Im not going to argue future dangerous[ness]. So that takes it out of Simmons anyhow. App. 245. The defense responded that the State ha[d] already raised future dangerousness through presentation of sentencing phase evidence, calling correctional officers to testify to an escape attempt, to testify to the fact that [Kelly] had possession of a shank, by calling inmates who testified to [Kellys] behavior in the jail [and] his plan to take a female guard hostage. Ibid. Defense counsel argued that the States cross-examination of the psychologist reinforced the other evidentiary indications of Kellys future dangerousness. Id., at 245246. The trial court denied the requested instruction, saying that the States evidence went to Kellys character and characteristics, not to future dangerousness. Id., at 249.
The sentencing proceeding then closed with arguments in which the prosecutor spoke of Kelly as the butcher of Batesburg, Bloody Billy, and Billy the Kid. Id., at 267268. The prosecutor told the jurors that [Kelly] doesnt have any mental illness. Hes intelligent . Hes quick-witted. Doesnt that make somebody a little more dangerous id., at 269. Defense counsel interrupted the prosecutor in midsentence with an objection, presumably for raising Kellys future dangerousness. The prosecutor nonetheless went on immediately, for this lady, this crime on January the 5th, doesnt that make him more unpredictable for [the victim] Shirley Shealy. Ibid. Kellys counsel did not renew her objection, and the trial court never ruled on the objection entered.1 The prosecutor continued that murderers will be murderers. And he is the cold-blooded one right over there. Id., at 272.
After the closing arguments, the trial judge instructed the jury that in choosing between recommendations of death and life imprisonment, it should consider the possible presence of five statutory aggravating circumstances, and three possible statutory mitigating circumstances. The judge explained that the terms life imprisonment and death sentence are to be understood in this ordinary and plain meaning. Id., at 289. But, in accordance with the earlier ruling, the court did not say that under South Carolina law, a convicted murderer sentenced to life imprisonment was ineligible for parole, nor did the court instruct that Kellys future dangerousness was not in issue. At the end of the charge, Kellys counsel renewed her objection to the courts refusal to give her requested Simmons instruction or, in the alternative, to inform the jury that the State had stipulated that future dangerousness was not in issue in the case. App. 304. After deliberating for 43 minutes, the jury found five statutory aggravating circumstances beyond a reasonable doubt and returned a recommendation of death, id., at 305307, to which the trial court acceded.
On appeal to the Supreme Court of South Carolina, Kelly assigned error to the trial courts refusal to instruct that he would be ineligible for parole under a life sentence. The State Supreme Court ruled otherwise and gave two alternative grounds for affirming the sentence. First, it followed the trial court in saying that the States evidence at sentencing did not raise future dangerousness and so did not trigger Simmons: [W]e agree with the trial court that the States evidence at sentencing did not implicate future dangerousness . In our opinion, the evidence presented by the State in the penalty phase was designed to show that Kelly would not adapt to prison life . 343 S. C., at 362, 540 S. E. 2d, at 857. Second, relying on its own ruling in State v. Shafer, 340 S. C. 291, 531 S. E. 2d 524 (2000), revd, Shafer v. South Carolina, 532 U.S. 36 (2001), the state court held that Simmons had no application to the sentencing regime in place at Kellys trial. 343 S. C., at 364, 540 S. E. 2d, at 858. The State Supreme Court committed error on each point. We granted certiorari, 533 U.S. 928 (2001), and now reverse.
We take the State Supreme Courts reasons out of order, for the second one can be answered with little more than citation to Shafer, in which we reversed a South Carolina judgment last Term. The state court said that Simmons is inapplicable under [South Carolinas] new sentencing scheme because life without the possibility of parole is not the only legally available sentence alternative to death. 343 S. C., at 364, 540 S. E. 2d, at 858. That statement mistakes the relationship of Simmons to the state sentencing scheme. It is true that a defendant charged with murder carrying the possibility of a death sentence can, under some circumstances, receive a sentence less than life imprisonment. But, as we explained in Shafer, under the South Carolina sentencing scheme a jury now makes a sentencing recommendation only if the jurors find the existence of an aggravating circumstance. When they do make a recommendation, their only alternatives are death or life without parole. 532 U.S., at 4950.2 We therefore hold, as we did in Shafer, that the state courts reasoning is not to the point.
The State Supreme Courts first ground, that Kellys future dangerousness was not at issue, is unsupportable on the record before us. It is not that the state court failed to pose the legal issue accurately, for in considering the applicability of Simmons it asked whether Kellys future dangerousness was a logical inference from the evidence, or was injected into the case through the States closing argument. 343 S. C., at 363, 540 S. E. 2d, at 857; see also Shafer, supra, at 5455 (whether prosecutors evidence or argument placed future dangerousness in issue); Simmons, 512 U.S., at 165, 171 (plurality opinion) (future dangerousness in issue because State raised the specter of future dangerousness generally and advanc[ed] generalized arguments regarding the [same]); id., at 174 (Ginsburg, J., concurring); id., at 177 (OConnor, J., concurring in judgment). The error, rather, was on the facts: the evidence and argument cited by the state court are flatly at odds with the view that future dangerousness was not an issue in this case. 343 S. C., at 363, 540 S. E. 2d, at 857.
The court acknowledged the prosecutors [e]vidence that Kelly took part in escape attempts and carried a shank, id., at 362, 540 S. E. 2d, at 857, and that he had been caught carrying a weapon and planning or participating in escape attempts, ibid. The court concluded, however, that this evidence was not the sort contemplated by Simmons, that is, evidence demonstrating future danger if released from prison. 343 S. C., at 362, n. 8, 540 S. E. 2d, at 857, n. 8 (quoting Simmons, supra, at 163) (emphasis added by state court). The court saw the evidence as going only to Kellys likely behavior in prison, or to his proclivity to escape from it; the state court said that Kelly was allowed to rebut this evidence of his inability to adapt to prison life, but that explaining parole ineligibility would do nothing to rebut evidence that Kelly was an escape risk. 343 S. C., at 362363, 540 S. E. 2d, at 857.
Even if we confine the evidentiary consideration to the evidence discussed by the State Supreme Court, the courts conclusion cannot be accepted. To the extent that it thought that [e]vidence that Kelly took part in escape attempts and carried a shank is not the type of future dangerousness evidence contemplated by Simmons, id., at 362, 540 S. E. 2d, at 857, it overlooked that evidence of violent behavior in prison can raise a strong implication of generalized future dangerousness. Simmons, supra, at 171. (And, of course, the state courts reasoning says nothing about the evidence of the crime, or of Kellys sadism generally, and his mercurial thirst for vengeance.) A jury hearing evidence of a defendants demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee.3
The fallacy of the State Supreme Courts attempt to portray the thrust of the evidence as so unrealistically limited harks back to a comparable mistake by the trial judge, who spoke of the evidence as going, not to future dangerousness, but to [Kellys] character and characteristics. App. 249. The error in trying to distinguish Simmons this way lies in failing to recognize that evidence of dangerous character may show characteristic future dangerousness, as it did here. This, indeed, is the fault of the States more general argument before us, that evidence of future dangerousness counts under Simmons only when the State introduc[es] evidence for which there is no other possible inference but future dangerousness to society. Brief for Respondent 27 (emphasis in original). Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.4
The prosecutor accentuated the clear inference of future dangerousness raised by the evidence and placed the case within the four corners of Simmons. He had already expressed his hope that the jurors would never in [their] lives again have to experience [b]eing some thirty feet away from such a person as Kelly. App. 64. The State Supreme Court made no mention of this, despite its thrust: since the jurors were unlikely to be spending any time in prison, they would end up 30 feet away from the likes of Kelly only if he got out of prison, as he might if parole were possible. The argument thus echoed the one made in Simmons itself, that the imposition of the death penalty was an act of self-defense. Both statements implied that petitioner would be let out eventually if the jury did not recommend a death sentence. 512 U.S., at 178 (OConnor, J., concurring in judgment) (emphasis in original).
And there was more. The state court to be sure considered the prosecutors comparison of Kelly to a notorious serial killer, variously calling him a dangerous bloody butcher. The court nonetheless thought it could somehow cordon off these statements as raising nothing more than a call for retribution. 343 S. C., at 363, 540 S. E. 2d, at 857. But the import of the argument simply cannot be compartmentalized this way. Characterizations of butchery did go to retribution, but that did not make them any the less arguments that Kelly would be dangerous down the road.5 They complemented the prosecutors submissions that Kelly was more frightening than a serial killer, App. 260, and that murderers will be murderers, id., at 272.6 Thus was Kellys jury, like its predecessor in Simmons, invited to infer that petitioner is a vicious predator who would pose a continuing threat to the community. Simmons, supra, at 176 (OConnor, J., concurring in judgment).
Perhaps because this is so undeniable, the State in its argument before us takes a tack never pursued by the state court, in claiming there was no need for instruction on parole ineligibility, because there is nothing whatsoever to indicate that the jurors were concerned at all with the possibility of [Kellys] future release when they decided death was appropriate. Brief for Respondent 47. But it cannot matter that Kellys jury did not ask the judge for further instruction on parole eligibility, whereas the Simmons and Shafer juries did. See Shafer, 532 U.S., at 44; Simmons, supra, at 160. A trial judges duty is to give instructions sufficient to explain the law, an obligation that exists independently of any question from the jurors or any other indication of perplexity on their part. Cf. C. Wright, Federal Practice and Procedure §485, p. 375 (3d ed. 2000) (It is the duty of the trial judge to charge the jury on all essential questions of law, whether requested or not). Time after time appellate courts have found jury instructions to be insufficiently clear without any record that the jury manifested its confusion; one need look no further than Penry v. Johnson, 532 U.S. 782 (2001), for a recent example. While the jurors questions in Simmons and Shafer confirmed the inadequacy of the charges in those cases, in each case it was independently significant that [d]isplacement of the longstanding practice of parole availability remains a relatively recent development [in South Carolina], and common sense tells us that many jurors might not know whether a life sentence carries with it the possibility of parole. 532 U.S., at 52 (quoting Simmons, supra, at 177178 (OConnor, J., concurring in judgment)).7
Nor is there any reason to believe that Kellys jury was better informed than Simmonss or Shafers on the matter of parole eligibility. The State, to be sure, emphasizes defense counsels opening statement that the jurys recommendation would be the sentence actually imposed and the sentence that will actually be carried out, Record 1660, as well as counsels closing, which stressed that Kelly would be in prison for the rest of his life and would never see the light of daylight again, id., at 2060. The State stresses that the judge told the jury that the terms life imprisonment and death sentence should be understood in their plain and ordinary meanings. App. 289.
But the same things could be said of Shafer, where we explicitly noted defense counsels statement to the jury that Shafer would die in prison after spend[ing] his natural life there, as well as the trial judges instructions that
The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
1. Although the State Supreme Court referred to this portion of the prosecutors argument, it did not indicate that defense counsel had objected between the prosecutors description of Kelly as dangerous and his subsequent characterization of Kelly as dangerous to the victim. 343 S. C. 350, 360, 540 S. E. 2d 851, 856 (2001).
2. Under South Carolina law, capital jurors first must decide whether the State has proven the existence of any statutory aggravating circumstance beyond a reasonable doubt. If the jury cannot agree unanimously on the presence of such a circumstance, it cannot make a sentencing recommendation; the judge is then charged with sentencing the defendant either to life imprisonment without parole or to a prison term of at least 30 years. S. C. Code Ann. §§16320(B), (C) (2000 Cum. Supp.); State v. Starnes, 340 S. C. 312, 328, 531 S. E. 2d 907, 916 (2000). But, if the jury does unanimously find a statutory aggravating circumstance, it recommends one of two possible sentences: death or life imprisonment without the possibility of parole. §§16320(A), (B). The jury has no other sentencing option.
3. The Chief Justices dissent correctly notes that a required instruction on parole eligibility does not bar a prosecutor from arguing dangerousness in prison as a ground for choosing the death penalty. See post, at 4. The plurality acknowledged this possibility in Simmons v. South Carolina, 512 U.S. 154, 165, n. 5 (1994) ([T]he fact that a defendant is parole ineligible does not prevent the State from arguing that the defendant poses a future danger); see also id., at 177 (OConnor, J., concurring in judgment) (when the defendant bring[s] his parole ineligibility to the jurys attention the prosecution is free to argue that the defendant would be dangerous in prison). But the plurality also recognized that even if a State [were] free to argue that the defendant will pose a danger to others in prison, id., at 165, n. 5, the State was not free to mislead the jury by concealing accurate information about the defendants parole ineligibility, ibid.
4. As The Chief Justice says, see post, at 45 (dissenting opinion), it may well be that the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future. See Simmons, supra, at 163 (plurality opinion) (noting that prosecutors in South Carolina, like those in other States that impose the death penalty, frequently emphasize a defendants future dangerousness in their evidence and argument at the sentencing phase). But this is not an issue here, nor is there an issue about a defendants entitlement to instruction on a parole ineligibility law when the States evidence shows future dangerousness but the prosecutor does not argue it. The only questions in this case are whether the evidence presented and the argument made at Kellys trial placed future dangerousness at issue. The answer to each question is yes, and we need go no further than Simmons in our discussion.
5. Nor, as the State Supreme Court thought, was evidence, elicited by the prosecution, that Kelly took part in escape attempts, 343 S. C., at 362, 540 S. E. 2d, at 857, somehow distinct from indications of dangerousness. It is true that evidence of propensity to escape does not necessarily put future dangerousness at issue, but here, the prosecution proffered evidence of at least one violent escape attempt. The evidence of Kellys plan to take a female guard hostage with a shank underscored a propensity for violence in addition to a predilection to escape.
6. The latter statement, in fact, speaks not to Kellys past conduct, but to his future deportment.
7. Whether this history of penology should suffice to require a Simmons instruction regardless of the details of evidence and argument going to future dangerousness is a question not raised by this case, in which evidence and argument did place dangerousness in issue.
8. If Kellys counsel had read the law verbatim to the jury with the judges manifest approval, that might have sufficed, but the State does not claim that defense counsel had any such opportunity, and conceded at oral argument that it is very unlikely that the trial judge would have permitted defense counsel to read to the jury the relevant section of the South Carolina Code. See Tr. of Oral Arg. 51.