Kelly v. South Carolina, 534 U.S. 246, 10 (2002)

Page:   Index   Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

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

Opinion of the Court

The prosecutor accentuated the clear implication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons. He had already expressed his hope that the jurors would "never in [their] lives again have to experience . . . [b]eing some thirty feet away from such a person" as Kelly. App. 64. The State Supreme Court made no mention of this, despite its thrust: since the jurors were unlikely to be spending any time in prison, they would end up 30 feet away from the likes of Kelly only if he got out of prison, as he might if parole were possible. The argument thus echoed the one made in Simmons itself, that the imposition of the death penalty was an act of "self-defense." Both statements "implied that petitioner would be let out eventually if the jury did not recommend a death sentence." 512 U. S., at 178 (O'Connor, J., concurring in judgment) (emphasis in original).

And there was more. The state court to be sure considered the prosecutor's comparison of Kelly to a notorious serial killer, variously calling him a "dangerous" "bloody" "butcher." The court nonetheless thought it could somehow cordon off these statements as raising nothing more than a call for retribution. 343 S. C., at 363, 540 S. E. 2d, at 857. But the import of the argument simply cannot be compartmentalized this way. Characterizations of butchery did go to retribution, but that did not make them any the less arguments that Kelly would be dangerous down the road.5 They

frequently emphasize a defendant's future dangerousness in their evidence and argument at the sentencing phase"). But this is not an issue here, nor is there an issue about a defendant's entitlement to instruction on a parole ineligibility law when the State's evidence shows future dangerousness but the prosecutor does not argue it. The only questions in this case are whether the evidence presented and the argument made at Kelly's trial placed future dangerousness at issue. The answer to each question is yes, and we need go no further than Simmons in our discussion.

5 Nor, as the State Supreme Court thought, was evidence, elicited by the prosecution, that Kelly "took part in escape attempts," 343 S. C., at 362, 540 S. E. 2d, at 857, somehow distinct from indications of dangerousness. It is true that evidence of propensity to escape does not necessarily


Page:   Index   Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: October 4, 2007