Wong v. Belmontes

Cite as: 558 U. S. ____ (2009) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
ROBERT WONG, WARDEN v. FERNANDO
BELMONTES, JR.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 08–1263. Decided November 16, 2009
PER CURIAM.
In 1981, in the course of a burglary, Fernando Belmon
tes bludgeoned Steacy McConnell to death, striking her in
the head 15 to 20 times with a steel dumbbell bar. See
People v. Belmontes, 45 Cal. 3d 744, 759–761, 755 P. 2d
310, 315–316 (1988). After the murder, Belmontes and his
accomplices stole McConnell’s stereo, sold it for $100, and
used the money to buy beer and drugs for the night. Id.,at 764–765, 755 P. 2d, at 318–319.
Belmontes was convicted of murder and sentenced to
death in state court. Unsuccessful on direct appeal and
state collateral review, Belmontes sought federal habeas
relief, which the District Court denied. The Court of Ap
peals reversed, finding instructional error, but we over
turned that decision. Ayers v. Belmontes, 549 U. S. 7(2006); see also Brown v. Belmontes, 544 U. S. 945 (2005).
On remand, the Court of Appeals again ruled for Bel
montes, this time finding that Belmontes suffered ineffec
tive assistance of counsel during the sentencing phase of
his trial. The District Court had previously denied relief
on that ground, finding that counsel for Belmontes had
performed deficiently under Ninth Circuit precedent, but
that Belmontes could not establish prejudice under Strick
land v. Washington, 466 U. S. 668 (1984). Belmontes v.
Calderon, Civ. S–89–0736 DFL JFM (ED Cal., Aug. 15,
2000), App. to Pet. for Cert. 140a, 179a, 183a. The Court
of Appeals agreed that counsel’s performance was defi
cient, but disagreed with the District Court with respect to
2 WONG v. BELMONTES
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prejudice, determining that counsel’s errors undermined
confidence in the penalty phase verdict. Belmontes v.
Ayers, 529 F. 3d 834, 859–863, 874 (CA9 2008). We dis
agree with the Court of Appeals as to prejudice, grant the
State’s petition for certiorari, and reverse.
I
Belmontes argues that his counsel was constitutionally
ineffective for failing to investigate and present sufficient
mitigating evidence during the penalty phase of his trial.
To prevail on this claim, Belmontes must meet both the
deficient performance and prejudice prongs of Strickland,
466 U. S., at 687. To show deficient performance, Belmon
tes must establish that “counsel’s representation fell below
an objective standard of reasonableness.” Id., at 688. In
light of “the variety of circumstances faced by defense
counsel [and] the range of legitimate decisions regarding
how best to represent a criminal defendant,” the perform
ance inquiry necessarily turns on “whether counsel’s
assistance was reasonable considering all the circum
stances.” Id., at 688–689. At all points, “[j]udicial scru
tiny of counsel’s performance must be highly deferential.”
Id., at 689.
The challenge confronting Belmontes’ lawyer, John
Schick, was very specific. Substantial evidence indicated
that Belmontes had committed a prior murder, and the
prosecution was eager to introduce that evidence during
the penalty phase of the McConnell trial. The evidence of
the prior murder was extensive, including eyewitness
testimony, Belmontes’ own admissions, and Belmontes’
possession of the murder weapon and the same type of
ammunition used to kill the victim. Record 2239–2250,
2261; Deposition of John Schick, Exhs. 62, 63, 64 (Sept.
26, 1995).
The evidence, furthermore, was potentially devastating.
It would have shown that two years before Steacy McCon
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nell’s death, police found Jerry Howard’s body in a se
cluded area. Howard had been killed execution style, with
a bullet to the back of the head. The authorities suspected
Belmontes, but on the eve of trial the State’s witnesses
refused to cooperate (Belmontes’ mother had begged one
not to testify). The prosecution therefore believed it could
not prove Belmontes guilty of murder beyond a reasonable
doubt. What the prosecution could prove, even without
the recalcitrant witnesses, was that Belmontes possessed
the gun used to murder Howard. So the State offered, and
Belmontes accepted, a no-contest plea to accessory after
the fact to voluntary manslaughter. Record 2239–2243;
Deposition of John Schick, Exhs. 62, 63, 64.
But Belmontes had not been shy about discussing the
murder, boasting to several people that he had killed
Howard. Steven Cartwright informed the district attorney
that Belmontes had confessed to the murder. A police
informant told detectives that Belmontes “bragged” about
the murder, stating that he was “mad” at Howard because
“the night before, he had quite a [lot] of dope and wouldn’t
share it with him.” After double jeopardy protection set in
and he had been released on parole, Belmontes admitted
his responsibility for the murder to his counselor at the
California Youth Authority, Charles Sapien. During his
time in confinement, Belmontes had “always denied that
he was the [one] who shot Jerry Howard.” But because
Sapien “had been square with [Belmontes],” Belmontes
decided to level with Sapien upon his release, telling
Sapien that he had “ ‘wasted’ that guy.” Record 2240;
Deposition of John Schick, Exhs. 62, 63, 64.
Schick understood the gravity of this aggravating evi
dence, and he built his mitigation strategy around the
overriding need to exclude it. California evidentiary rules,
Schick knew, offered him an argument to exclude the
evidence, but those same rules made clear that the evi
dence would come in for rebuttal if Schick opened the door.
4 WONG v. BELMONTES
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Record 2256; see also People v. Rodriguez, 42 Cal. 3d 730,
791–792, 726 P. 2d 113, 153 (1986); People v. Harris, 28
Cal. 3d 935, 960–962, 623 P. 2d 240, 254 (1981). Schick
thus had “grave concerns” that, even if he succeeded ini
tially in excluding the prior murder evidence, it would still
be admitted if his mitigation case swept too broadly.
Accordingly, Schick decided to proceed cautiously, struc
turing his mitigation arguments and witnesses to limit
that possibility. Deposition of John Schick 301, 309–310;
see Strickland, supra, at 699 (“Restricting testimony on
respondent’s character to what had come in at the plea
colloquy ensured that contrary character and psychologi
cal evidence and respondent’s criminal history, which
counsel had successfully moved to exclude, would not come
in”).
As Schick expected, the prosecution was ready to admit
this evidence during the sentencing phase. Schick moved
to exclude the evidence, arguing that the State should be
allowed to tell the jury only that Belmontes had been
convicted of being an accessory after the fact to voluntary
manslaughter—nothing more. Record 2240–2254. Schick
succeeded in keeping the prosecution from presenting the
damaging evidence in its sentencing case in chief, but his
client remained at risk: The trial court indicated the evi
dence would come in for rebuttal or impeachment if Schick
opened the door. Id., at 2256.
This was not an empty threat. In one instance, Schick
elicited testimony that Belmontes was not a violent per
son. The State objected and, out of earshot of the jury,
argued that it should be able to rebut the testimony with
the Howard murder evidence. Id., at 2332–2334. The
Court warned Schick that it was “going to have to allow
[the prosecution] to go into the whole background” if
Schick continued his line of questioning. Id., at 2334.
Schick acquiesced, and the court struck the testimony.
Ibid.
Cite as: 558 U. S. ____ (2009) 5
Per Curiam
The Court’s warning reinforced Schick’s understanding
that he would have to tailor his mitigation case carefully
to preserve his success in excluding the Howard murder
evidence. With that cautionary note in mind, Schick put
on nine witnesses he thought could advance a case for
mitigation, without opening the door to the prior murder
evidence. See id., at 2312–2417.
The Court of Appeals determined that in spite of these
efforts, Schick’s performance was constitutionally deficient
under Circuit precedent. Belmontes, 529 F. 3d, at 862–
863. The State challenges that conclusion, but we need
not resolve the point, because we agree with the District
Court that Belmontes cannot establish prejudice.
II
To establish prejudice, Belmontes must show “a reason
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been dif
ferent.” Strickland, 466 U. S., at 694. That showing
requires Belmontes to establish “a reasonable probability
that a competent attorney, aware of [the available mitigat
ing evidence], would have introduced it at sentencing,”
and “that had the jury been confronted with this . . . miti
gating evidence, there is a reasonable probability that it
would have returned with a different sentence.” Wiggins
v. Smith, 539 U. S. 510, 535, 536 (2003).
The Ninth Circuit determined that a reasonably compe
tent lawyer would have introduced more mitigation evi
dence, on top of what Schick had already presented. For
purposes of our prejudice analysis, we accept that conclu
sion and proceed to consider whether there is a reasonable
probability that a jury presented with this additional miti
gation evidence would have returned a different verdict.
In evaluating that question, it is necessary to consider
all the relevant evidence that the jury would have had
before it if Schick had pursued the different path—not just
6 WONG v. BELMONTES
Per Curiam
the mitigation evidence Schick could have presented, but
also the Howard murder evidence that almost certainly
would have come in with it. See Strickland, supra, at
695–696, 700. Thus, to establish prejudice, Belmontes
must show a reasonable probability that the jury would
have rejected a capital sentence after it weighed the entire
body of mitigating evidence (including the additional
testimony Schick could have presented) against the entire
body of aggravating evidence (including the Howard mur
der evidence). Belmontes cannot meet this burden.
We begin with the mitigating evidence Schick did pre
sent during the sentencing phase. That evidence was
substantial. The same Ninth Circuit panel addressing the
same record in Belmontes’ first habeas appeal agreed,
recognizing “the substantial nature of the mitigating
evidence” Schick presented. Belmontes v. Woodford, 350
F. 3d 861, 907 (2003). It reiterated the point several
times. See id., at 874, 901, 908.
All told, Schick put nine witnesses on the stand over a
span of two days, and elicited a range of testimony on
Belmontes’ behalf. A number of those witnesses high
lighted Belmontes’ “terrible” childhood. They testified
that his father was an alcoholic and extremely abusive.
Belmontes’ grandfather described the one-bedroom house
where Belmontes spent much of his childhood as a
“chicken coop.” Belmontes did not do well in school; he
dropped out in the ninth grade. His younger sister died
when she was only 10 months old. And his grandmother
died tragically when she drowned in her swimming pool.
See Record 2314–2319, 2324–2325, 2344.
Family members also testified that, despite these diffi
culties, Belmontes maintained strong relationships with
his grandfather, grandmother, mother, and sister. Id., at
2317–2318, 2325–2326. And Belmontes’ best friend of
fered the insights of a close friend and confidant. Id., at
2329–2332.
Cite as: 558 U. S. ____ (2009) 7
Per Curiam
Schick also called witnesses who detailed Belmontes’
religious conversion while in state custody on the acces
sory charge. These witnesses told stories about Belmon
tes’ efforts advising other inmates in his detention center’s
religious program, to illustrate that he could live a produc
tive and meaningful life in prison. They described his
success working as part of a firefighting crew, detailing his
rise from lowest man on the team to second in command.
Belmontes’ assistant chaplain even said that he would use
Belmontes as a regular part of his prison counseling pro
gram if the jury handed down a life sentence. Id., at
2379–2384, 2396–2398, 2400–2407.
Belmontes himself bolstered these accounts by testifying
about his childhood and religious conversion, both at
sentencing and during allocution. Belmontes described
his childhood as “pretty hard,” but took responsibility for
his actions, telling the jury that he did not want to use his
background “as a crutch[,] to say I am in a situation now
. . . because of that.” Id., at 2343.
On remand from this Court, the Court of Appeals—
addressing Belmontes’ ineffective assistance claim for the
first time—changed its view of this evidence. Instead of
finding Schick’s mitigation case “substantial,” as it previ
ously had, Belmontes, 350 F. 3d, at 907, the Ninth Circuit
this time around labeled it “cursory,” Belmontes, 529 F. 3d,
at 841, 861, n. 14, 866. Compare also Belmontes, 350
F. 3d, at 874, 901, 907 (labeling the mitigation evidence
Schick presented “substantial”), with Belmontes, 529
F. 3d, at 847, n. 3, 874 (labeling the same evidence “insub
stantial”). More evidence, the Court of Appeals now con
cluded, would have made a difference; in particular, more
evidence to “humanize” Belmontes, as that court put it no
fewer than 11 times in its opinion. Belmontes, 529 F. 3d,
at 850, 859, 860, 862, 863, 864, 865, and n. 18, 869, 872,
874. The Court determined that the failure to put on this
evidence prejudiced Belmontes.
8 WONG v. BELMONTES
Per Curiam
There are two problems with this conclusion: Some of
the evidence was merely cumulative of the humanizing
evidence Schick actually presented; adding it to what was
already there would have made little difference. Other
evidence proposed by the Ninth Circuit would have put
into play aspects of Belmontes’ character that would have
triggered admission of the powerful Howard evidence in
rebuttal. This evidence would have made a difference, but
in the wrong direction for Belmontes. In either event,
Belmontes cannot establish Strickland prejudice.
First, the cumulative evidence. In the Court of Appeals’
view, Belmontes should have presented more humanizing
evidence about Belmontes’ “difficult childhood” and high
lighted his “positive attributes.” 529 F. 3d, at 864. As for
his difficult childhood, Schick should have called witnesses
to testify that “when Belmontes was five years old, his 10
month-old sister died of a brain tumor,” that he “exhibited
symptoms of depression” after her death, that his grand
mother suffered from “alcoholism and prescription drug
addiction,” and that both his immediate and extended
family lived in a state of “constant strife.” Ibid. As for his
positive attributes, Schick should have produced testi
mony about Belmontes’ “strong character as a child in the
face of adversity.” Ibid. Schick should have illustrated
that Belmontes was “kind, responsible, and likeable”; that
he “got along well with his siblings” and was “respectful
towards his grandparents despite their disapproval of his
mixed racial background”; and that he “participated in
community activities, kept up in school and got along with
his teachers before [an] illness, and made friends easily.”
Ibid.But as recounted above and recognized by the state
courts and, originally, this very panel, Schick did put on
substantial mitigation evidence, much of it targeting the
same “humanizing” theme the Ninth Circuit highlighted.
Compare, e.g., ibid., with Record 2317 (death of 10-month
Cite as: 558 U. S. ____ (2009) 9
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old sister); id., at 2319, 2325 (difficult childhood); id., at
2314–2315 (family member’s addictions); id., at 2314–
2315, 2324–2325 (family strife and abuse); id., at 2317,
2319, 2347–2348, 2397 (strong character as a child); id., at
2326–2327 (close relationship with siblings); id., at 2317–
2319 (close relationship with grandparents); id., at 2348–
2351 (participation in community religious events); see
also, e.g., Belmontes’ Traverse to Respondent’s Return to
Pet. for Writ of Habeas Corpus in No. 5–89–0736–EJG–
JFM (ED Cal.), p. 64 (“[C]ounsel’s presentation was ar
guably adequate only with respect to [evidence] of ‘human
izing’ petitioner”). The sentencing jury was thus “well
acquainted” with Belmontes’ background and potential
humanizing features. Schriro v. Landrigan, 550 U. S. 465,
481 (2007). Additional evidence on these points would
have offered an insignificant benefit, if any at all.
The Ninth Circuit also determined that both the evi
dence Schick presented and the additional evidence it
proposed would have carried greater weight if Schick had
submitted expert testimony. Such testimony could “make
connections between the various themes in the mitigation
case and explain to the jury how they could have contrib
uted to Belmontes’s involvement in criminal activity.”
Belmontes, 529 F. 3d, at 853. See also ibid. (discussing
expert’s federal habeas testimony on importance of expert
testimony). But the body of mitigating evidence the Ninth
Circuit would have required Schick to present was neither
complex nor technical. It required only that the jury make
logical connections of the kind a layperson is well
equipped to make. The jury simply did not need expert
testimony to understand the “humanizing” evidence; it
could use its common sense or own sense of mercy.
What is more, expert testimony discussing Belmontes’
mental state, seeking to explain his behavior, or putting it
in some favorable context would have exposed Belmontes
to the Howard evidence. See Darden v. Wainwright, 477
10 WONG v. BELMONTES
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U. S. 168, 186 (1986) (“Any attempt to portray petitioner
as a nonviolent man would have opened the door for the
State to rebut with evidence of petitioner’s prior convic
tions. . . . Similarly, if defense counsel had attempted to
put on evidence that petitioner was a family man, they
would have been faced with his admission at trial that,
although still married, he was spending the weekend
furlough with a girlfriend”).
If, for example, an expert had testified that Belmontes
had a “ ‘high likelihood of a . . . nonviolent adjustment to a
prison setting,’ ” as Belmontes suggested an expert might,
see Brief for Appellant in No. 01–99018 (CA9), p. 34, the
question would have immediately arisen: “What was his
propensity toward violence to begin with? Does evidence
of another murder alter your view?” Expert testimony
explaining why the jury should feel sympathy, as opposed
simply to facts that might elicit that response, would have
led to a similar rejoinder: “Is such sympathy equally ap
propriate for someone who committed a second murder?”
Any of this testimony from an expert’s perspective would
have made the Howard evidence fair game.
Many of Belmontes’ other arguments fail for the same
reason. He argues that the jury should have been told
that he suffered an “extended bout with rheumatic fever,”
which led to “emotional instability, impulsivity, and im
pairment of the neurophysiological mechanisms for plan
ning and reasoning.” Amended Pet. for Writ of Habeas
Corpus 120. But the cold, calculated nature of the Howard
murder and Belmontes’ subsequent bragging about it
would have served as a powerful counterpoint.
The type of “more-evidence-is-better” approach advo
cated by Belmontes and the Court of Appeals might seem
appealing—after all, what is there to lose? But here there
was a lot to lose. A heavyhanded case to portray Belmon
tes in a positive light, with or without experts, would have
invited the strongest possible evidence in rebuttal—the
Cite as: 558 U. S. ____ (2009) 11
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evidence that Belmontes was responsible for not one but
two murders.
Belmontes counters that some of the potential mitigat
ing evidence might not have opened the door to the prior
murder evidence. The Court of Appeals went so far as to
state, without citation, that “[t]here would be no basis for
suggesting that [expert testimony] would be any different
if the expert were informed that Belmontes committed two
murders rather than one.” Belmontes, 529 F. 3d, at 869,
n. 20. But it is surely pertinent in assessing expert testi
mony “explain[ing] . . . involvement in criminal activity,”
id., at 853, to know what criminal activity was at issue.
And even if the number of murders were as irrelevant as
the Ninth Circuit asserted, the fact that these two murders
were so different in character made each of them highly
pertinent in evaluating expert testimony of the sort envi
sioned by the Court of Appeals.
The Ninth Circuit noted that the trial court retained
discretion to exclude the Howard evidence even if Schick
opened the door. Id., at 869–870, n. 20. If Schick had
doubts, the Court of Appeals contended, he could have
secured an answer in advance through a motion in limine.
Ibid. The trial judge, however, left little doubt where he
stood. While ruling that the prosecution could not present
the evidence in its case in chief, Record 2254, the judge
made clear that it would come in for certain rebuttal
purposes, id., at 2256, 2332–2334. When Schick elicited
testimony that Belmontes was not violent, for example,
the judge ordered it stricken and warned Schick that he
would admit the Howard murder evidence—to let the
prosecution “go into the whole background”—if Schick
pressed forward. Id., at 2334.
In balancing the mitigating factors against the aggrava
tors, the Court of Appeals repeatedly referred to the ag
gravating evidence the State presented as “scant.” Bel
montes, 529 F. 3d, at 870, 873, 874, 875, 878. That
12 WONG v. BELMONTES
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characterization misses Strickland’s point that the review
ing court must consider all the evidence—the good and the
bad—when evaluating prejudice. See Strickland, 466
U. S., at 695–696, 700. Here, the worst kind of bad evi
dence would have come in with the good. The only reason
it did not was because Schick was careful in his mitigation
case. The State’s aggravation evidence could only be
characterized as “scant” if one ignores the “elephant in the
courtroom”—Belmontes’ role in the Howard murder—that
would have been presented had Schick submitted the
additional mitigation evidence. Belmontes v. Ayers, 551
F. 3d 864, 867 (CA9 2008) (Callahan, J., dissenting from
denial of rehearing en banc).
Even on the record before it—which did not include the
Howard murder—the state court determined that Belmon
tes “was convicted on extremely strong evidence that he
committed an intentional murder of extraordinary brutal
ity.” Belmontes, 45 Cal. 3d, at 819, 755 P. 2d, at 354.
That court also noted that “[t]he properly admitted aggra
vating evidence in this case—in particular, the circum
stances of the crime—was simply overwhelming.” Id., at
809, 755 P. 2d, at 348 (citation omitted). The Ninth Cir
cuit saw the murder differently. It viewed the circum
stances of the crime as only “conceivably significant” as an
aggravating factor. Belmontes, 529 F. 3d, at 871. In
particular, the Court of Appeals concluded that “[t]he
crime here did not involve . . . needless suffering on the
part of the victim.” Ibid.We agree with the state court’s characterization of the
murder, and simply cannot comprehend the assertion by
the Court of Appeals that this case did not involve “need
less suffering.” The jury saw autopsy photographs show
ing Steacy McConnell’s mangled head, her skull crushed
by 15 to 20 blows from a steel dumbbell bar the jury found
to have been wielded by Belmontes. McConnell’s corpse
showed numerous “defensive bruises and contusions on
Cite as: 558 U. S. ____ (2009) 13
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[her] hands, arms, and feet,” id., at 839, which “plainly
evidenced a desperate struggle for life at [Belmontes’]
hands,” Belmontes, 755 P. 2d, at 354. Belmontes left
McConnell to die, but officers found her still fighting for
her life before ultimately succumbing to the injuries
caused by the blows from Belmontes. Record 3. The jury
also heard that this savage murder was committed solely
to prevent interference with a burglary that netted Bel
montes $100 he used to buy beer and drugs for the night.
McConnell suffered, and it was clearly needless.
Some of the error below may be traced to confusion
about the appropriate standard and burden of proof.
While the Court of Appeals quoted the pertinent language
from Strickland, that court elsewhere suggested it might
have applied something different. In explaining its preju
dice determination, the Ninth Circuit concluded that “[t]he
aggravating evidence, even with the addition of evidence
that Belmontes murdered Howard, is not strong enough,
in light of the mitigating evidence that could have been
adduced, to rule out a sentence of life in prison.” Belmon
tes, 529 F. 3d, at 875. But Strickland does not require the
State to “rule out” a sentence of life in prison to prevail.
Rather, Strickland places the burden on the defendant,
not the State, to show a “reasonable probability” that the
result would have been different. 466 U. S., at 694. Un
der a proper application of the Strickland standard, Bel
montes cannot carry this burden.
It is hard to imagine expert testimony and additional
facts about Belmontes’ difficult childhood outweighing the
facts of McConnell’s murder. It becomes even harder to
envision such a result when the evidence that Belmontes
had committed another murder—“the most powerful
imaginable aggravating evidence,” as Judge Levi put it,
Belmontes, S-89–0736, App. to Pet. for Cert. 183a—is
added to the mix. Schick’s mitigation strategy failed, but
the notion that the result could have been different if only
14 WONG v. BELMONTES
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Schick had put on more than the nine witnesses he did, or
called expert witnesses to bolster his case, is fanciful.
The petition for certiorari and the motion for leave to
proceed in forma pauperis are granted. The judgment of
the Court of Appeals for the Ninth Circuit is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 558 U. S. ____ (2009) 1
STEVENS, J., concurring
SUPREME COURT OF THE UNITED STATES
ROBERT WONG, WARDEN v. FERNANDO
BELMONTES, JR.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 08–1263. Decided November 16, 2009
JUSTICE STEVENS, concurring.
When Fernando Belmontes was sentenced to death in
1982, California Penal Code §190.3(k)* conveyed the
unmistakable message that juries could not give any
mitigating weight to evidence that did not extenuate the
severity of the crime. See Ayers v. Belmontes, 549 U. S. 7,
27 (2006) (STEVENS, J., dissenting). The trial judge who
presided at Belmontes’ sentencing hearing so understood
the law, and his instructions to the jury reflected that
understanding. See id., at 33–34. It was only later that
both the California Supreme Court and this Court
squarely held that a jury must be allowed to give weight to
any aspect of a defendant’s character or history that may
provide a basis for a sentence other than death, even if
such evidence does not “ ‘tend to reduce the defendant’s
culpability for his crime.’ ” Id., at 28 (quoting Skipper v.
South Carolina, 476 U. S. 1, 11 (1986) (Powell, J., concur
ring in judgment)).
The testimony adduced at Belmontes’ sentencing hear
ing described his religious conversion and his positive
contributions to a youth rehabilitation program. Neither
his own testimony, nor that of the two ministers and the
other witnesses who testified on his behalf, made any
attempt to extenuate the severity of his crime. Their
testimony did, however, afford the jury a principled basis
for imposing a sentence other than death. See Ayers, 549
——————
* Cal. Penal Code Ann. §190.3(k) (West 1988).
2 WONG v. BELMONTES
STEVENS, J., concurring
U. S., at 29–31 (STEVENS, J., dissenting). A review of the
entire record, especially the colloquy between six jurors
and the trial judge, makes it clear to me that “the jury
believed that the law forbade it from giving that evidence
any weight at all.” Id., at 36–39. I therefore remain con
vinced that in its initial review of this case, the Court of
Appeals correctly set aside Belmontes’ death sentence.
The narrow question that is now before us is whether
the additional mitigating evidence that trial counsel failed
to uncover would have persuaded the jury to return a
different verdict. The evidence trial counsel might have
presented hardly matters, however, because in my view
the conscientious jurors’ mistaken understanding of the
law would have prevented them from giving that addi
tional evidence “any weight at all,” id., at 39, let alone
controlling weight. Despite my strong disagreement with
the Court’s decision to review this case once again, I nev
ertheless agree with the Court’s conclusion that trial
counsel’s failure to present additional mitigating evidence
probably did not affect the outcome of the trial.