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Perry v. Johnson
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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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SUPREME COURT OF THE UNITED STATES
Syllabus
PENRY v. JOHNSON, DIRECTOR, TEXAS DEPART-MENT
OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 00–6677. Argued March 27, 2001—Decided June 4, 2001
In 1989, this Court held that petitioner Penry had been sentenced to
death in violation of the Eighth Amendment. At the close of the penalty
hearing during Penry’s first Texas capital murder trial, the jury
was instructed to answer three statutorily mandated “special issues”:
(1) whether Penry’s conduct was committed deliberately and with the
reasonable expectation that death would result; (2) whether it was
probable that he would be a continuing threat to society; and (3)
whether the killing was unreasonable in response to any provocation
by the deceased. Although Penry had offered extensive evidence that
he was mentally retarded and had been severely abused as a child,
the jury was never told it could consider and give mitigating effect to
that evidence in imposing sentence. In holding that the jury had not
been adequately instructed with respect to the mitigating evidence,
the Court found, among other things, that none of the special issues
was broad enough to allow the jury to consider and give effect to that
evidence. Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I). When Texas retried Penry in 1990, he was again found guilty of capital murder. During the penalty phase, the defense again put on extensive evidence regarding Penry’ s mental impairments and childhood
abuse. On direct examination by the defense, a clinical neuropsy-chologist, Dr. Price, testified that he believed Penry suffered from organic brain impairment and mental retardation. During cross-examination, Price cited as one of the records he had reviewed in
preparing his testimony a psychiatric evaluation prepared by Dr.
Peebles in 1977 at the request of Penry’s then-counsel to determine
Penry’s competency to stand trial on an earlier charge unrelated to
the murder at issue. Over a defense objection, Price recited a portion of that evaluation which stated that it was Peebles’ professional opinion that if Penry were released, he would be dangerous to others. When it came time to submit the case to the jury, the trial court instructed the jury to determine Penry’ s sentence by answering the same three special issues that were at issue in Penry I. The trial court then gave a “supplemental instruction”: “[W]hen you deliberate on the . . . special issues, you are to consider mitigating circumstances, if any, supported by the evidence . . . . If you find [such] circumstances . . . , you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to [Penry’s] personal culpability . . . , a negative finding should be given to one of the special issues.” The verdict form itself, however, contained only the text of the three special issues, and gave the jury two choices with respect to each: “Yes” or “No.” Because the jury unanimously answered “yes” to each special issue, the court sentenced Penry to death in accordance with state law. In affirming, the Texas Court of Criminal Appeals rejected Penry’s claims that the admission of language from the Peebles report violated Penry’s Fifth Amendment privilege against self-incrimination, and that the jury instructions were constitutionally inadequate because they did not
permit the jury to consider and give effect to his particular mitigating evidence. With respect to the latter, the court held that the supplemental instruction met Penry I’s constitutional requirements. After his petition for state habeas corpus relief was denied, Penry petitioned for federal habeas relief under 28 U.S.C. §2254. The District Court found that the state appellate court’s conclusions on both of Penry’s claims were neither contrary to, nor an unreasonable application of, clearly established federal law. The Fifth Circuit denied a certificate of appealability.
Held:
1. Penry’s argument is unavailing that the admission into evidence of the portion of the Peebles report referring to his future dangerousness violated his Fifth Amendment privilege against self-incrimination. This case is distinguishable from Estelle v. Smith, 451 U. S. 454, in which the Court held that the admission of a psychiatrist’s testimony on the topic of future dangerousness, based on a defendant’s uncounseled statements, violated the Fifth Amendment. The Court need not and does not decide whether the several respects in which this case differs from Estelle affect the merits of Penry’s claim. Rather, the question is whether the Texas court’ s decision was “contrary to” or an “unreasonable application” of this Court’ s precedent.
28 U. S. C. §2254(d)(1); see Williams v. Taylor, 529 U. S. 362. It was not. The differences between this case and Estelle are substantial, and the Court’s Estelle opinion suggested that its holding was limited to the “distinct circumstances” presented there. 451 U. S., at 466. It also indicated that the Fifth Amendment analysis might be different where a defendant introduces psychiatric evidence at the penalty phase. Id., at 472. Indeed, the Court has never extended Estelle’s Fifth Amendment holding beyond its particular facts. Cf., e.g., Buchanan v. Kentucky, 483 U. S. 402. It therefore cannot be said that it was objectively unreasonable for the Texas court to conclude that Penry is not entitled to relief on his Fifth Amendment claim. See Williams, supra, at 409. Even if the Court’s precedent were to establish squarely that use of the Peebles report violated the Fifth Amendment, that error would justify overturning Penry’ s sentence only if he could establish that the error had a substantial and injurious effect or influence in determining the jury’ s verdict. E.g., Brecht v. Abrahamson, 507 U. S. 619, 637. There is considerable doubt that Penry could make such a showing. The excerpt from the Peebles report was neither the first nor the last expert opinion the jury heard to the effect that Penry posed a future danger and was by no means the key to the State’s case on future dangerousness. Pp. 9–12.
2. The jury instructions at Penry’s resentencing, however, did not comply with the Court’ s mandate in Penry I. To the extent the Texas appellate court believed that Penry I was satisfied merely because a supplemental instruction was given, the court clearly misapprehended that prior decision. The key under Penry I is that the jury be able to “consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.” 492 U. S., at 319. To the extent the state court concluded that the substance of the jury instructions given at Penry’s resentencing satisfied Penry I, that determination was objectively
unreasonable. The three special issues submitted to the jury were
identical to the ones found inadequate in Penry I. Although the supplemental instruction mentioned mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical. The jury was clearly instructed that a “yes” answer to a special issue was appropriate only when supported by the evidence beyond a reasonable doubt, and that a “no” answer was appropriate only when there was a reasonable doubt as to whether the
answer to a special issue should be “yes. ” The verdict form listed the
three special issues and, with no mention of mitigating circumstances,
confirmed and clarified the jury’s two choices with respect to
each special issue. In the State’s view, however, the jury was alsotold that it could ignore these clear guidelines and—even if there was
in fact no reasonable doubt as to the matter inquired about—answer
any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or
more truthful “yes” answers to an untruthful “no” answer in order to
avoid a death sentence for Penry. The supplemental instruction
thereby made the jury charge as a whole internally contradictory,
and placed law-abiding jurors in an impossible situation. The comments
of the prosecutor and defense counsel, as well as the comments
of the court during voir dire, did little to clarify the confusion caused by the instructions themselves. Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion the Court reached in Penry I: “[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” 492 U. S., at 326. Pp. 12–20.
215 F. 3d 504, affirmed in part, reversed in part, and remanded.
O’ CONNOR, J., delivered the opinion of the Court, Parts I, II, and III– A of which were unanimous, and Part III–B of which was joined by
STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ. THOMAS, J.,
filed an opinion concurring in part and dissenting in part, in which
REHNQUIST, C. J., and SCALIA, J., joined.
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