162
Opinion of Kennedy, J.
was the basis for the prosecution's case in the sentencing hearing. Evidence of the crime spree did not depend on formal convictions for its admission. The prosecutor, moreover, did not mention the Domino's crime in his opening statement and did not introduce evidence of the crime during the Commonwealth's case in chief. App. 8-47. Ramdass himself first injected the Domino's crime into the sentencing proceeding, testifying in response to his own lawyer's questions about his involvement in the crime. In closing, the prosecutor argued that Ramdass could not live by the rules of society "either here or in prison." Id., at 86.
During the juror deliberations, the jury sent a note to the judge asking: " '[I]f the Defendant is given life, is there a possibility of parole at some time before his natural death?' " Id., at 88. Petitioner's counsel suggested the following response: " ' "You must not concern yourself with matters that will occur after you impose your sentence, but you may impose [sic] that your sentence will be the legal sentence imposed in the case." ' " Id., at 89. The trial judge refused the instruction, relying on the then-settled Virginia law that parole is not an appropriate factor for the jury to consider, and informed the jury that they " 'are not to concern [them]selves with what may happen afterwards.' " Id., at 91. The next day the jury returned its verdict recommending the death sentence.
Virginia law permitted the judge to give a life sentence despite the jury's recommendation; and two months later the trial court conducted a hearing to decide whether the jury's recommended sentence would be imposed. During the interval between the jury trial and the court's sentencing hearing, final judgment had been entered on the Domino's conviction. At the court's sentencing hearing, Ramdass' counsel argued for the first time that his prior convictions rendered him ineligible for parole under Virginia's three-strikes law, which denies parole to a person convicted of three separate felony offenses of murder, rape, or armed
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