782
OCTOBER TERM, 2000
Syllabus
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 (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 neuropsychologist, 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]
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