Kelly v. South Carolina, 534 U.S. 246, 5 (2002)

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Opinion of the Court

burg," "Bloody Billy," and "Billy the Kid." Id., at 267-268. The prosecutor told the jurors that "[Kelly] doesn't have any mental illness. He's intelligent. . . . He's quick-witted. Doesn't that make somebody a little more dangerous—" id., at 269. Defense counsel interrupted the prosecutor in mid-sentence with an objection, presumably for raising Kelly's future dangerousness. The prosecutor nonetheless went on immediately, "—for this lady, this crime on January the 5th, doesn't that make him more unpredictable for [the victim] Shirley Shealy." Ibid. Kelly's counsel did not renew her objection, and the trial court never ruled on the objection entered.1 The prosecutor continued that "murderers will be murderers. And he is the cold-blooded one right over there." Id., at 272.

After the closing arguments, the trial judge instructed the jury that in choosing between recommendations of death and life imprisonment, it should consider the possible presence of five statutory aggravating circumstances, and three possible statutory mitigating circumstances. The judge explained "that the terms 'life imprisonment' and 'death sentence' are to be understood in this ordinary and plain meaning." Id., at 289. But, in accordance with the earlier ruling, the court did not say that under South Carolina law, a convicted murderer sentenced to life imprisonment was ineligible for parole, nor did the court instruct that Kelly's future dangerousness was not in issue. At the end of the charge, Kelly's counsel renewed her objection to the court's refusal to give her requested Simmons instruction or, in the alternative, to inform the jury that the State had stipulated that future dangerousness was not in issue in the case. App. 304.

1 Although the State Supreme Court referred to this portion of the prosecutor's argument, it did not indicate that defense counsel had objected between the prosecutor's description of Kelly as "dangerous" and his subsequent characterization of Kelly as dangerous to the victim. 343 S. C. 350, 360, 540 S. E. 2d 851, 856 (2001).

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