Per Curiam SMITH v. TEXAS ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS No. 04-5323. Decided November 15, 2004 The supplemental nullification instruction given at the punishment phase of petitioner's capital murder trial allowed the Texas jury to give effect to his mitigation evidence only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness. Pursuant to this instruction, the jury sentenced petitioner to death. The Texas Court of Criminal Appeals denied him postconviction relief, reasoning that the instruction either was irrelevant because petitioner did not proffer "constitutionally significant" mitigation evidence, or was distinguishable from the instruction in Penry v. Johnson, 532 U. S. 782, 797 (Penry II), which this Court found constitutionally inadequate because it did not allow a jury to give "full consideration and full effect to mitigating circumstances" in choosing an appropriate sentence. Held: Petitioner's evidence was relevant mitigation evidence under Tennard v. Dretke, 542 U. S. 274, and Penry v. Lynaugh, 492 U. S. 302; therefore, the nullification instruction was constitutionally inadequate under Penry II. In rejecting the precise threshold "constitutionally significant" test used here, the Tennard Court held that a jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a "low threshold for relevance." 542 U. S., at 285. Because petitioner's proffered evidence was relevant under this Court's precedents, the Eighth Amendment required the trial court to empower the jury with a vehicle capable of giving effect to that evidence. In Penry II, the Texas courts' supplemental instruction did not give the jury an adequate vehicle for expressing a "reasoned moral response" to all of the evidence relevant to the defendant's culpability. 532 U. S., at 796. Any distinctions between that supplemental instruction and the one here are constitutionally insignificant. Certiorari granted; 132 S. W. 3d 407, reversed and remanded. PER CURIAM. Petitioner LaRoyce Lathair Smith was convicted of capital murder and sentenced to death by a jury in Dallas County, Texas. Before the jury reached its sentence, the trial judge Per Curiam issued a supplemental “nullification instruction." Ex parte Smith, 132 S. W. 3d 407, 409 (Tex. Crim. App. 2004). That instruction directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness. In Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), we held a similar "nullification instruction" constitutionally inadequate because it did not allow the jury to give "full consideration and full effect to mitigating circumstances'" in choosing the defendant's appropriate sentence. Id., at 797 (quoting Johnson v. Texas, 509 U. S. 350, 381 (1993) (O'CONNOR, J., dissenting)). Despite our holding in Penry II, the Texas Court of Criminal Appeals rejected petitioner's request for postconviction relief. The court reasoned that the instruction either was irrelevant because petitioner did not proffer "constitutionally significant" mitigation evidence, or was sufficiently distinguishable from the instruction in Penry II to survive constitutional scrutiny. 132 S. W. 3d, at 413, n. 21. We grant the petition for certiorari and petitioner's motion for leave to proceed in forma pauperis, and reverse. I In 1991, petitioner was convicted of brutally murdering one of his former co-workers at a Taco Bell in Dallas County. The victim and one of her co-workers were closing down the restaurant when petitioner and several friends asked to be let in to use the telephone. The two employees recognized petitioner and let him in. Petitioner then told his former co-workers to leave because he wanted to rob the restaurant. When they did not leave, petitioner killed one co-worker by pistol-whipping her and shooting her in the back. Petitioner also threatened, but did not harm, his other former coworker before exiting with his friends. The jury found petitioner guilty of capital murder beyond a reasonable doubt. Per Curiam At the punishment phase, the jury was instructed on two special issues: first, whether the killing was deliberate; and second, whether the defendant posed a continuing danger to others.1 Approximately two years prior to the trial, we had held that presenting only these two special issues, without additional instructions regarding the jury's duty to consider mitigation evidence, violated the Eighth Amendment. Penry v. Lynaugh, 492 U. S. 302, 328 (1989) (Penry I). Shortly after petitioner's trial, the Texas Legislature amended its capital sentencing scheme to require juries to take "into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant" in deciding whether there are sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Penry II, supra, at 803 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001)). Petitioner, however, did not receive the benefit of the new statutory instruction at his trial. Instead, just as in Penry II, petitioner was sentenced pursuant to a supplemental instruction provided to the jury by the trial judge.2 That instruction read: 1 The text of the special issues given to the jury was as follows: "(1) Was the conduct of the defendant that caused the death of the deceased committed deliberately, and with the reasonable expectation that the death of the deceased or another would result? (2) Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?" Pet. for Cert. 5. 2 The supplemental instruction in Penry II stated: "You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and there Per Curiam "You are instructed that you shall consider any evidence which, in your opinion, is mitigating. Mitigating evidence is evidence that reduces the Defendant's personal or moral culpability or blameworthiness, and may include, but is not limited to, any aspect of the Defendant's character, record, background, or circumstances of the offense for which you have found him guilty. Our law does not specify what may or may not be considered as mitigating evidence. Neither does our law provide a formula for determining how much weight, if any, a mitigating circumstance deserves. You may hear evidence which, in your judgment, has no relationship to any of the Special Issues, but if you find such evidence is mitigating under these instructions, you shall consider it in the following instructions of the Court. You, and each of you, are the sole judges of what evidence, if any, is mitigating and how much weight, if any, the mitigating circumstances, if any, including those which have no relationship to any of the Special Issues, deserves. “In answering the Special Issues submitted to you herein, if you believe that the State has proved beyond a reasonable doubt that the answers to the Special Issues are "Yes," and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special Issues "No" in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. In this regard, you are further instructed that the State of Texas fore, 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 the personal culpability of the defendant, a negative finding should be given to one of the special issues.'" 532 U. S., at 789-790 (emphasis added). Per Curiam must prove beyond a reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you. "You are instructed that you may deliberate as a body about mitigating circumstances, but you are not required to reach a unanimous verdict as to their existence or weight. When you vote about the Special Issues, each of you must decide for yourself whether mitigating circumstances exist and, if so, how much weight they deserve."" 132 S. W. 3d, at 409. Employing the framework of special issues modified by the supplemental nullification instruction, the jury considered a variety of mitigation evidence. Petitioner presented evidence that (1) he had been diagnosed with potentially organic learning disabilities and speech handicaps at an early age; (2) he had a verbal IQ score of 75 and a full IQ of 78 and, as a result, had been in special education classes throughout most of his time in school; (3) despite his low IQ and learning disabilities, his behavior at school was often exemplary; (4) his father was a drug addict who was involved with gang violence and other criminal activities, and regularly stole money from family members to support a drug addiction; and (5) he was only 19 when he committed the crime. In response, the prosecution submitted evidence demonstrating that petitioner acted deliberately and cruelly. The prosecution emphasized that petitioner knew his victim, yet stabbed her repeatedly in numerous places on her body. With respect to petitioner's future dangerousness, the prosecution stressed that petitioner had previously been convicted of misdemeanor assault and proffered evidence suggesting that he had violated several drug laws. During closing arguments at the punishment phase, the prosecution reminded the jury of its duty to answer truthfully the two special issues of deliberateness and future dangerousness. |