Syllabus

472 U. S.

CALDWELL v. MISSISSIPPI

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

No. 83-6607. Argued February 25, 1985-Decided June 11, 1985 In a bifurcated proceeding conducted pursuant to Mississippi's capital punishment statute, petitioner was convicted of murder and sentenced to death. Petitioner's lawyers in their closing argument at the sentencing stage, referred to petitioner's youth, family background, and poverty, as well as to general character evidence, and they asked the jury to show mercy, emphasizing that the jury should confront the gravity and responsibility of calling for another's death. In response, the prosecutor urged the jury not to view itself as finally determining whether petitioner would die, because a death sentence would be reviewed for correctness by the Mississippi Supreme Court. That court unanimously affirmed the conviction but affirmed the death sentence by an equally divided court, rejecting, in reliance on California v. Ramos, 463 U. S. 992, the contention that the prosecutor's comments violated the Eighth Amendment.

Held: The death sentence is vacated.

443 So. 2d 806, reversed in part and remanded.

JUSTICE MARSHALL delivered the opinion of the Court with respect to all but Part IV-A, concluding that:

1. Where an examination of the decision below as to the issue of the prosecutor's comments does not indicate that it rested on adequate and independent state grounds, namely, petitioner's failure to comply with a Mississippi procedural rule as to raising the issue on appeal, this Court does not lack jurisdiction to decide the issue. Pp. 326-328.

2. It is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe, as the jury was in this case, that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an "awesome responsibility" has allowed this Court to view sentencer discretion as consistent with and indispensable to the Eighth Amendment's "need for reliability in the determination that death is appropriate punishment in a specific case." Woodson v. North Carolina, 428 U. S. 280, 305 (plurality opinion). Pp. 328-330.

3. There are several reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced sugges

tions that the sentencing jury may shift its sense of responsibility to an appellate court. Pp. 330-334.

(a) The "delegation" of sentencing responsibility that the prosecutor here encouraged would not simply postpone petitioner's right to a fair determination of the appropriateness of his death; rather, it would deprive him of that right, for an appellate court, unlike the sentencing jury, is ill-suited to evaluate the appropriateness of death in the first instance. Pp. 330-331.

(b) Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to "send a message" of extreme disapproval for the defendant's acts. This desire might make the jury very receptive to the prosecutor's assurance that it can err because the error can be corrected on appeal. A defendant might then be executed, although no sentencer had ever determined that death was the appropriate sentence. Pp. 331-332.

(c) If a jury understands that only a death sentence, and not a life sentence, will be reviewed, it will also understand that any decision to "delegate" responsibility for sentencing can only be effectuated by returning a death sentence. This presents the specter of the imposition of death based on an irrelevant factor and would also create the danger of a defendant's being executed without any determination that death was the appropriate punishment. P. 332.

(d) The uncorrected suggestion that the jury's responsibility for any ultimate determination of death will rest with others presents the danger that the jury will choose to minimize the importance of its role, especially where, as here, the jury is told that the alternative decisionmaker is the State's highest court. Pp. 332-333.

4. As to the State's contention that the prosecutor's argument was an "invited" response to defense counsel's argument, and thus was not unreasonable, neither the State nor the court below explains how the prosecutor's argument was less likely to have distorted the jury's deliberations because of anything defense counsel said. Pp. 336-337.

5. Donnelly v. DeChristoforo, 416 U. S. 637, does not preclude a finding of constitutional error based on the sort of impropriety that the prosecutor's argument contains. Although that case warned against holding every improper and unfair argument of a state prosecutor to be a federal constitutional violation, it did not insulate all prosecutorial comments from federal constitutional objections. Pp. 337-340.

JUSTICE MARSHALL, joined by JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS, delivered an opinion with respect to Part IV-A, concluding that California v. Ramos, supra, is not authority for holding that States are free to expose capital sentencing juries to any

Syllabus

472 U. S. information and argument concerning postsentencing procedures. In Ramos, the Court, in upholding a state statutory requirement that capital sentencing juries be instructed that the Governor could commute a life sentence without possibility of parole into a lesser sentence, rested on a determination that the instruction was both accurate and relevant to a legitimate state penological interest. In contrast, here the argument was neither accurate nor relevant to such an interest, but was misleading and was not linked to any valid sentencing consideration. Pp. 335-336.

JUSTICE O'CONNOR, being of the view that the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility, concluded that Ramos, supra, does not sanction a misleading picture of the jury's role nor does it suggest that the Constitution prohibits the giving of accurate and nonmisleading instructions regarding postsentencing procedures. Pp. 341–342.

MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, IV-B, IV-C, and V, in which BRENNAN, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Part IV-A, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 341. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and WHITE, J., joined, post, p. 343. POWELL, J., took no part in the decision of the case.

E. Thomas Boyle argued the cause and filed briefs for petitioner.

William S. Boyd III, Special Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief were Edwin Lloyd Pittman, Attorney General, and Marvin L. White, Jr., Special Assistant Attorney General.*

*Briefs of amici curiae were filed for the State of Arizona et al. by David Crump, Jean F. Powers, Robert K. Corbin, Attorney General of Arizona, Steve Clark, Attorney General of Arkansas, Austin J. McGuigan, Chief State's Attorney of Connecticut, and John M. Massameno, Assistant State's Attorney, Jim Smith, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, William J. Guste, Jr., Attorney General of Louisiana, John Ashcroft, Attorney General of Missouri, Michael T. Greely, Attorney Gen

JUSTICE MARSHALL delivered the opinion of the Court, except as to Part IV-A.

This case presents the issue whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case. In this case, a prosecutor urged the jury not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the State Supreme Court. We granted certiorari, 469 U. S. 879 (1984), to consider petitioner's contention that the prosecutor's argument rendered the capital sentencing proceeding inconsistent with the Eighth Amendment's heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion). Agreeing with the contention, we vacate the sentence.1

eral of Montana, Paul L. Douglas, Attorney General of Nebraska, Lacy H. Thornburg, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael C. Turpen, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Mark V. Meierhenry, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, and Gerald L. Baliles, Attorney General of Virginia; and for the National Association of Criminal Defense Lawyers et al. by Daniel F. Kolb, Nancy R. Grunberg, Ephraim Margolin, Richard J. Wilson, Dennis N. Balske, and John Charles Boger.

'Petitioner also raises a challenge to his conviction, arguing that there was constitutional infirmity in the trial court's refusal to appoint various experts and investigators to assist him. Mississippi law provides a mechanism for state appointment of expert assistance, and in this case the State did provide expert psychiatric assistance to Caldwell at state expense. But petitioner also requested appointment of a criminal investigator, a fingerprint expert, and a ballistics expert, and those requests were denied. The State Supreme Court affirmed the denials because the requests were accompanied by no showing as to their reasonableness. For example, the defendant's request for a ballistics expert included little more than "the general statement that the requested expert 'would be of great necessarius witness.'" 443 So. 2d 806, 812 (1983). Given that petitioner offered little

Petitioner shot and killed the owner of a small grocery store in the course of robbing it. In a bifurcated proceeding conducted pursuant to Mississippi's capital punishment statute, petitioner was convicted of capital murder and sentenced to death.

In their case for mitigation, petitioner's lawyers put on evidence of petitioner's youth, family background, and poverty, as well as general character evidence. In their closing arguments they referred to this evidence and then asked the jury to show mercy. The arguments were in large part pleas that the jury confront both the gravity and the responsibility of calling for another's death, even in the context of a capital sentencing proceeding.

"[E]very life is precious and as long as there's life in the soul of a person, there is hope. There is hope, but life is one thing and death is final. So I implore you to think deeply about this matter. It is his life or death-the decision you're going to have to make, and I implore you to exercise your prerogative to spare the life of Bobby Caldwell.... I'm sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It's going to be your decision. I don't know what else I can say to you but we live in a society where we are taught that an eye for an eye is not the solution. . . . You are the judges and you will have to decide his fate. It is an awesome responsibility, I know-an awesome responsibility." App. 18-19.

more than undeveloped assertions that the requested assistance would be beneficial, we find no deprivation of due process in the trial judge's decision. Cf. Ake v. Oklahoma, 470 U. S. 68, 82-83 (1985) (discussing showing that would entitle defendant to psychiatric assistance as matter of federal constitutional law). We therefore have no need to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to assistance of the type here sought.