WPCc 2 B5JCourierNew Century SchoolbookNew Century Schoolbook Italic#|o olbookAPLASIIN.PRSx  @hhhhPijX@#|[ 2% Z<===QApple LaserWriter IINTAPLASIIN.PRSo P['ChhhhPij&Pp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G='ooooIop    Њ P['Chhhh&P    ЊNew Century SchoolbookNew Century Schoolbook BoldNew Century Schoolbook Italic2 sWX| K} EnvEnvelopes) 3'3'Standard,,Envelopeɤ  ` h   Draft OpPre-Circulation DraftZ\#x6X@8;kX@#  X` hp x (#%'0*,.8135@8: P['CP&u![2*d[ P['CPu![2*[e xzCX`o5fxJiMoAuZuZ`SfNe.eS1JGG]]]82]8{{]8"AA]++SSff"A8'eeeeCefCirculationCirculationn Format׼Ł J   %)#e P['C|P#3rd DRAFT # P['A>P# y )  dd^_ SUPREME COURT OF THE UNITED STATESА-  ^_dd #T P[:+AdP# <<  I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)2t c^"m^FJa3SS}FSFFFFoõfççõ̵SS}3o}SOJOޙ}otaÆxSSSFSS*SSSSSSSSSSOǵo}}}}fOfOfOfO̙}}}}̙̙̙̙Ð}}}ooooÐ}}}}ÆÆÆÆÆÆЙЙfOfOfOfOÔOOOOO̙̙̙̙}}еooottttaaa̙̙̙̙̙̙ðxxxÐO̙otaÐ}̙NF}JokkTKыSS3aaAA}}3aS'd"m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<P#)  dd^_  R SUPREME COURT OF THE UNITED STATESА*(  ^_dd #T P[:+AdP# <<  I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)2^-[ 2%%HW')Final OpFinal Opinion Formatr   #  ( (   X` hp x (#%'0*,.8135@8:P#x X )  dd^_ SUPREME COURT OF THE UNITED STATESА*(  ^_dd #T P[:+AdP# <<  I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)5 EllipsisParagraph EllipsisD;X` hp x (#%'0*,.8135@8:P# Justice Stevens#e P['C|P# 14Circulated: _______________________________ 14Recirculated: _____________________________ 27:-c/5668"m^)+9RRzx11IY)1))RRRRRRRRRR))YYYAljjjrjbrz>RRR1,zzR1llRz199R&&IIZZ91'YYYY;YZ"m^AE[¾0NNuANAAAAh_ܾ夤NNu0huN}JEJϏuhl[}}}pNNNANN'NNNNNNNNNNJ麨huuuu_J_J_J_Juuuu}uu}uhhhhuuuu}}}}}}_J_J_J_JJJJJJuu¨hhhllll[[[嶤}pppJhl[}}uNAuEhccNFÂNN0[[<<uu0[NэA'MM捍]@s:`捍fsѨ`sfszNMϏzsffzfMMfffffffMMMMMMMMMMMMNNF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^AE[¾0NNuANAAAAh_ܾ夤NNu0huN}JEJϏuhl[}}}pNNNANN'NNNNNNNNNNJ麨huuuu_J_J_J_Juuuu}uu}uhhhhuuuu}}}}}}_J_J_J_JJJJJJuu¨hhhllll[[[嶤}pppJhl[}}uNAuEhccNFÂNN0[[<<uu0[N']"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2'[[[[<[\2Eci:=c?Z0C"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^!+==\Z%%7C%==========CCC1QOOOVOIV\-=VIhZVIVOEIZOlMMC%C%C7==1?7%;C#!A#bC7?=13+C;V;;5%C%C%%%n%%%%%%%%%%?#O=O=O=O=O=nXO1O7O7O7O7-#-#-#-#ZCV7V7V7V7ZCZCZCZCM;O=V?V7V7M;V7I?O=O=O=O1O1O1O1V?O7O7O7O7V;V;V;V;V;V;\C\C-#-#-#-#=VAI#I#I#I#I#ZCZCZCZCV7V7n\O1O1O1E3E3E3E3I+I+I+ZCZCZCZCZCZClVM;C5C5C5V?I#ZCO1E3I+M;M;V?V7ZCNCC7!1//===%!\\=%QQ=\%++=n77nCCn+n%'CCCC,CC"m^*2gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR&)o=3no P['C&P&4NA> P['CP&u![2*d[ P['CPu![2*[e xzCX)o=3Roe xzC&X&r!Y1)LY P['CP)o=3no P['C&PYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY26RFHJcL"m^#22KI-72222222222777(BAAAFA>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQX P['CP&u![2*d[ P['CPu![2*[e xzCX)o=3Roe xzC&X&r!Y1)LY P['CP )o=3no P['C&P&!UC%D4C P['CJP&F66 P['CP00QTTe][Xi]]]]]]]]]]]]]]]]]]]@@@@@@@XXXXXXXXXXXXXX2c`c"m^#22KI-72222222222777(BAAAFAHYYY66^E@@@@(JEEE66;,1N11@@@A9<16%7,7(7,A6C/A1>1P7A/:,A1E12156(7(>4E/A1H>E>9(6144>986@9999999999999999999(((((((666666666666666666661111111444444444444>>>>>>>>>>>>>>>>>>>>A7AA>E>1 Opin Init #  ( (     П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a) Final Other  ##  ( ( ( (  # P['A>P#)  dd^_  R SUPREME COURT OF THE UNITED STATESА J  -(  ^_dd #T P[:+AdP# <<  I A 1 a (1)(a) i) a) I A 1 a (1)(a) i) a)-#[ P['CdP# ( ( , , w  C  ddd < ӋH uB  ddd < #[ P['CdP#&DELO v. LASHLEYI uB  ddd < #[ P['CdP#&DELO v. LASHLEY`B؃#o P['Cn&P# L PAUL DELO, SUPERINTENDENT, POTOSI CORREC!$TIONAL CENTER, PETITIONER  J #Qv. FREDERICK LASHLEY    on petition for writ of certiorari to the united  states court of appeals for the eighth circuit #[ P['CdP# d No. 92!409. Decided March 8, 1993 -,   #o P['Cn&P#  J gFootnotes#[ P['CdP# dd X01Í Í01Í Í , , #o P['Cn&P#X` hp x (#%'0*,.8135@8: this chapter, as well as all reports and records of the juvenile court are  uB not lawful or proper evidence against the child and shall not be used for  uB any purpose whatsoever in any proceedings, civil or criminal, other than proceedings under this chapter. Mo. Rev. Stat.  ! 211.271 (1978) (emphasis added).  Accordingly, 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  J death penalty.I  uB ԍ   XgEpXFrMo. Rev. St.  ! 565.012.3(1) (1978) (current version Mo. Rev. Stat.  w ! 565.032.3(1) (Supp. 1991)) establishes the following as a statutory mitigating factor:   The defendant had no significant history of prior criminal activity.  uB  Even if the statute did not so provide, our holding in Lockett v. Ohio, 438 U.S. 586 (1978), would require that consideration be given to that mitigating factor. In 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 ruleXJ"!!  is equally inapplicable in the capital sentencing process when the defendant requests an instruction explaining the statutory mitigating circumstance at issue in this case.  : H1 8I؃  8C  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  J; overcome the proof which the law has created. Coffin v.  J United States, 156 U.S. 432, 459. A few years later, inhis landmark treatise on evidence, Professor Thayer, while noting that a presumption is not itself evidence, concluded:  *BQ sd  , , (  What appears to be true may be stated thus:" N N " 1. A presumption operates to relieve the party in whose tt(favor it works from going forward in argument or evidence.  J7 N N " 2. It serves therefore the purposes of a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence. J. Thayer, A Preliminary Treatise on Evidence at the Common  J Law, Appendix B, p. 575 (1898) (hereinafter Thayer).J uB ԍ 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  uB it counts at the outset, for evidence enough to make a prima facie case. Thayer 576.- BQ d   ( , ,  The presumption of innocence plays a unique role in criminal proceedings. As Chief Justice Burger explained  J in his opinion for the Court in Estelle v. Williams, 425 U.S. 501 (1976):["!! Ԍ *BQ d  , , (  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  J$ law.' Coffin v. United States, 156 U.S. 432, 453  J (1895). Id., at 503.2 BQ d   ( , , The failure to instruct the jury on the presumption may violate the Due Process Clause of the Fourteenth Amendment even when a proper instruction on the prosecution's burden of proving guilt beyond a reasonable doubt has  J 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  J  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 crossexamination about his juvenile record. As Chief Judge Arnold explained:  *BQ d  , , (  [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 ruling was flatly contrary to state law.  J Lashley v. Armontrout, 957 F. 2d 1495, 1500, n.1"!!   J (CA8 1992).W uBh ԍ   XgEpXFrThe other two members of the panel did not agree with Chief Judge Arnold's opinion that this error constituted a separate and distinct  uB violation of the principle of Lockett 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.W9 BQ d   ( , , This erroneous ruling by the trial judge unquestionably explains why the record contains no specific testimony about respondent's prior criminal history. Even though  J due process may not automatically entitle a defendant to an instruction that he is presumed innocent of other  Jt offenses at the penalty phase of the trial, under Whorton,  JL 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  J in Lockett v. Ohio, 438 U.S. 586 (1978), the comparable refusal in this case was also constitutional error requiring  J the vacation of respondent's death sentence. #  uB ԍ   XgEpXFrWe have made it clear that procedural safeguards constitutionally required at the guilt stage of a capital trial are also required at the  uB% 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  uB itself, must satisfy the requirements of the Due Process Clause); Estelle  uBJ v. Smith, 451 U.S. 454 (1981) (Fifth Amendment privilege against self uB incrimination applies at capital sentencing); Bullington v. Missouri, 451 U.S. 430 (1981) (Double Jeopardy Clause applies at capital sentencing).  uBo In Bullington we actually considered the same Missouri statutes that  uB& regulated this respondent's capital sentencing, and held that [b]y enacting a capital sentencing procedure that resemble a trial on the issue of  uB guilt or innocence, however, Missouri explicitly requires the jury to  uBK determine whether the prosecution has `proved its case'. Id., at 444 (emphasis in original). The Court of Appeals, therefore, properly set aside a sentence of death imposed by a jury uninformed that the statel%"!!  legislature had expressly authorized it to withhold that sentence because the defendant had no prior criminal  J record.o  uB ԍ   XgEpXFrIt is true that respondent's claim of constitutional error focused on the trial court's refusal to prohibit crossexamination about his juvenile record and did not mention the presumption of innocence. Similarly, the Court  uB= of Appeals relied on the rationale of Lockett v. Ohio, 438 U.S. 586 (1978), without mentioning the presumption. Nevertheless, our jurisprudence  uB firmly establishes that it is appropriate to affirm a judgment on a ground  uBb that was not raised below. It is manifestly unjust to reverse a correct judgment and to reinstate the death penalty simply because the basis for the judgment was not adequately articulated in earlier proceedings.  : H1 7II؃  8C  The mitigating factor in question corresponds precisely  JS to the presumption of innocence. When the trial record reveals no prior criminal history at all the presumption  J serves as a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence,  J Thayer, supra, 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 the  JK prima facie case established by the presumption of inno J# cence at the sentencing phase of the trial. o#  uB ԍAs 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  uB requested instruction on a statutory mitigating factor. Ante, at 4. We have even held that the State may require a capital defendant to support a requested jury instruction with a preponderance of the evidence.  uB 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 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  uBl State, it means that the State must offer something to disprove it.  uB# Because the State in this case offered nothing to disprove it, the instruction was constitutionally required. # "!! Ԍ  In this case, as the Court expressly acknowledges, nothing in the record disturbed the presumption that  J Lashley was a first offender. Ante, at 7. There was no danger that the jury might conclude improperly that he  J` 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  J by a defendant as mitigating evidence and that it could give mitigating effect to that evidence in imposing sen J tence. Penry v. Lynaugh, 492 U.S. 302, 320 (1989)  J (emphasis in original)._ '   uB ԍ &  XgEp| X  ,  We note that the Oklahoma death penalty statute permits the defendant to present evidence `as to any mitigating circumstances.' Okla.  uBW Stat., Tit. 21,  701.10 (1980). Lockett requires the sentencer to listen.  uB 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  uB4 matter of semantics,' as suggested by the dissent. Woodson [v. North  uB Carolina, 428 U.S. 280 (1976)] and Lockett require us to remove any legitimate basis for finding ambiguity concerning the factors actually  uBY considered by the trial court. Id., at 119 (O'Connor, J., concurring)._   "!! Ԍ Because no one is better able than the defendant to  J make the required proffer, ante, at 6, 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's Fifth Amendment privilege against  J selfincrimination.# o  uB( ԍ &   The Fifth Amendment privilege against selfincrimination, applied  uB against the States through the Fourteenth Amendment in Malloy v.  uB Hogan, 378 U.S. 1 (1964), clearly applies at the sentencing phase of a  uBM 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  uB obligation to observe fundamental constitutional guarantees. See Green  uBr v. Georgia, 442 U.S. 95, 97 (1979); Presnell v. Georgia, 439 U.S. 14, 16  uB) (1978); Gardner v. Florida, 430 U.S. 349, 357!358 (1977) (plurality opinion)). #  h XgEpXFrIt 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 act summarily in this case, thus expediting the execution of a defendant who, I firmly believe, should not be eligible for the death  J penalty at all. See Thompson v. Oklahoma, 487 U.S.  "!!  815, 830!831 (1988) (plurality opinion).  I respectfully dissent.