Kelly v. South Carolina, 534 U.S. 246, 4 (2002)

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Cite as: 534 U. S. 246 (2002)

Opinion of the Court

dence of Kelly's sadism at an early age, see id., at 218, and his inclination to kill anyone who rubbed him the wrong way, see id., at 195.

After presentation of this evidence but before closing arguments, Kelly's counsel relied on Simmons in requesting the judge to instruct the jurors that if Kelly received a sentence of life imprisonment, he would be ineligible for parole. The instruction she sought was a near-verbatim excerpt of S. C. Code Ann. 16-3-20 (2000 Cum. Supp.):

" '[L]ife imprisonment' means imprisonment until the death of the offender. No person sentenced to life imprisonment is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by law." 343 S. C. 350, 360, 540 S. E. 2d 851, 856 (2001).

The prosecutor objected that "I'm not going to argue future dangerous[ness]. So that takes it out of Simmons anyhow." App. 245. The defense responded that "the State ha[d] already raised future dangerousness" through presentation of sentencing phase evidence, "calling correctional officers to testify to an escape attempt, to testify to the fact that [Kelly] had possession of a shank, by calling inmates who testified to [Kelly's] behavior in the jail . . . [and] his plan to take a female guard hostage." Ibid. Defense counsel argued that the State's cross-examination of the psychologist reinforced the other evidentiary indications of Kelly's future dangerousness. Id., at 245-246. The trial court denied the requested instruction, saying that the State's evidence went to Kelly's character and characteristics, not to future dangerousness. Id., at 249.

The sentencing proceeding then closed with arguments in which the prosecutor spoke of Kelly as "the butcher of Bates-


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