dissenting and concurring.
I dissent from the court’s holding in part H, which overturns Lashley’s death sentence. I join in parts A-F and concur in part G of the court’s opinion. I would thus affirm both Lashley’s capital murder conviction and death sentence.
Dissent from Part H
In part H, the court reverses a brutal killer’s death sentence because the state trial judge refused to give a mitigating circumstance instruction on a barren record. Ante at 1501-1502. Although the court concedes Lashley failed to offer any evidence showing he had no significant history of criminal activity to support his requested instruction, the court concludes Lashley was entitled to the instruction once he asked for it. In my view, the court’s position is contrary to controlling Supreme Court precedent. I thus dissent.
My disagreement with the court is simple: In concluding Lashley was entitled to a mitigating circumstance instruction despite “the lack of any evidence whatever of Lashley’s prior criminal activity,” ante at 1502, the court misapplies Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality). Lockett holds the sen-tencer in a capital case must be permitted to consider mitigating evidence offered by the defendant. Id. at 604, 98 S.Ct. at 2964; Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982). When the record contains evidence of a particular mitigating circumstance, the defendant is entitled to have the jury instructed on that circumstance. Penry v. Lynaugh, 492 U.S. 302, 319-28, 109 S.Ct. 2934, 2947-52, 106 L.Ed.2d 256 (1989). Lockett and Penry, however, do not stand for the proposition that state trial courts must instruct juries on mitigating circumstances when supporting evidence has not been presented. Due process requires that state trial courts give mitigating circumstance instructions only when the evidence warrants those instructions. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Indeed, injecting mitigating circumstance instructions into capital cases without supporting evidence would “invite[] the jurors to disregard their oaths,” and would invariably lead to conjectural and capricious sentencing decisions — the very thing Lockett seeks to avoid. Id.
I believe the court has made three mistakes in holding “the Missouri trial [judgej’s failure to give [Lashley’s requested] instruction violated the Eighth Amendment as explained in Lockett." Ante at 1502. First, the court is mistaken when it states “Lockett makes it clear that [Lash-ley] is not required to meet any particular burden of proving a mitigating factor ... *1503before the [jury] is permitted to consider [the factor].” Ante at 1501. Contrary to the court’s reading of Lockett, the Supreme Court expressly left this question open, stating, “[W]e need not address [the] contention ... that it violates the Constitution to require defendants to bear the risk of nonpersuasion as to the existence of mitigating circumstances in capital cases.” Lockett, 438 U.S. at 609 n. 16, 98 S.Ct. at 2967 n. 16. Since Lockett, the Supreme Court has held the Constitution is not violated when a state requires capital defendants to bear this risk. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 3055, 111 L.Ed.2d 511 (1990) (plurality); see also id. 110 S.Ct. at 3066-68 (Scalia, J., concurring) (rejecting Lockett as unsound and without constitutional foundation). Based on the holding in Walton, I believe it is clear the state trial judge did not violate Lockett by refusing to give .Lashley’s requested mitigating circumstance instruction on an empty record.
Second, the court mistakenly holds “Lockett requires the state ... to come forward with evidence [showing Lashley’s criminal history], or else the [trial] court must tell the jury it may consider the requested mitigating circumstance.” Ante at 1502. The Supreme Court rejected this position in Walton, holding there is no “constitutional imperative ... that would require the [sentencer] to consider the mitigating circumstances claimed by a defendant unless the State negate[s] them.” 110 S.Ct. at 3055. In Lashley’s case, the State had neither a burden nor a reason to introduce evidence refuting a mitigating circumstance about which the record was otherwise silent.
Finally, the court mistakenly concludes Lockett obligated the state trial judge to give Lashley’s requested mitigating circumstance instruction even though the record did not contain a shred of evidence to support it. Essentially, the court holds that a lack of evidence is itself evidence. Ante at 1501. I say this based on the court’s reasoning that although “[t]he evidence before the jury ... presented a blank slate [, a]s far as the jury was concerned, Lashley had no significant history of prior criminal activity and, therefore, he was entitled to have the jury consider that fact as a mitigating circumstance.” Id. (emphasis mine). Simply stated, the court’s position is at odds with Lockett, Eddings, Penry, and Walton. These cases make clear that before a capital defendant is entitled to have the jury consider a mitigating circumstance, the defendant must first present evidence supporting that circumstance. Indeed, Walton leaves no doubt the constitution permits states to insist capital defendants establish “by a preponderance of the evidence, the existence of mitigating circumstances sufficiently substantial to call for leniency.” 110 S.Ct. at 3055.
Unlike the defendant in Walton, however, Lashley did not have to prove his mitigating circumstances by a preponderance of the evidence. Under Missouri law, Lashley was merely required to introduce some evidence in support of the- mitigating circumstance instruction he requested. See State v. Lashley, 667 S.W.2d 712, 715-16 (Mo.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The Missouri Supreme Court expressly held Lash-ley was not entitled to his requested instruction because he chose to leave the record completely silent on the issue of his past criminal activity. Id. Thus, the state trial judge properly denied Lashley’s requested instruction, and this did not impinge on Lashley’s constitutional rights. Although Lockett and Penry guarantee capital defendants the right to offer mitigating evidence and the right to submit jury instructions giving effect to that evidence, Lockett does not require a state to abandon its rules of evidence. See Walton, 110 S.Ct. at 3055. Thus, given these circumstances Lashley cannot complain about the trial judge’s refusal to give an instruction that had no foundation whatsoever in the record.
In my view, the court unnecessarily reverses Lashley’s death sentence based on the state trial judge’s proper refusal to give a requested jury instruction that has no support in the record. To do so, the court misreads Lockett, fails to follow Wal*1504ton, overlooks Penry' and Hopper, and rejects Missouri state law. Because the court ignores this controlling authority, I dissent.
Concurrence in Part G
In part G and footnote one, the court’s opinion combines two distinct contentions Lashley raises on appeal about his attorney's failure to introduce evidence in support of his requested mitigating circumstance instruction. First, Lashley contends he received ineffective assistance of counsel because his trial attorney failed to introduce mitigating evidence in support of his requested instruction. Judge Arnold, Judge Waters, and I agree the district court properly rejected this contention, and further explanation of the court’s position is unnecessary. Ante at 1500 (main text of part G). In his second contention, Lashley claims the state trial court, in violation of Lockett, precluded his attorney from introducing supporting mitigating evidence. Judge Arnold agrees with Lashley and would reverse based on Lockett. See ante at 1500 n. 1. Judge Waters and I, however, disagree with Lashley’s contention. Id. Because footnote one of the court’s opinion only briefly states our position, I write separately to explain our holding.
In his Lockett contention, Lashley claims he was denied due process because the state trial judge prevented his attorney from introducing evidence to support his request for the mitigating circumstance instruction. According to Lashley, the trial judge erroneously ruled the State could use evidence of his juvenile record to rebut his criminal-history witnesses. See Mo.Rev. Stat. § 211.271 (1978) (statute governing use of juvenile records). A careful review of the record reveals Lashley’s claim is unfounded.
During a pretrial conference preceding the penalty phase of Lashley’s trial, the State broached the subject of Lashley’s juvenile record and its admissibility under state law. (T. 709). Lashley’s attorney made her trial strategy clear to the trial judge and the prosecutor when she responded, “I am not going to ask [Lashley’s witnesses] about [Lashley’s] juvenile record and I am ... making a motion in limine that the State be prohibited from introducing ... or eliciting evidence of ... Lashley’s juvenile record.” (T. 711). The prosecutor replied he did not intend to introduce evidence of Lashley’s past criminal activities unless defense witnesses testified Lashley had no criminal history. (T. 711-12).
In presenting her motion and during the ensuing dialogue with the prosecutor and the trial judge, Lashley’s attorney repeatedly emphasized she was not going to ask her witnesses any questions about Lashley’s juvenile record or his criminal activity. (T. 712). Indeed, with prepared questions in hand, Lashley’s attorney told the trial court she would ask two defense witnesses how they knew Lashley, how Lashley acted around them, whether they loved Lashley, and whether- they wanted the jury to spare Lashley’s life. (T. 712, 714-15). The trial judge asked Lashley’s attorney whether she intended to ask these witnesses about Lashley’s behavior, and the attorney responded, “I didn’t plan to ask that question.” (T. 713-14). The prosecutor had no quarrel with the proposed questions, and he assured the judge and Lashley’s attorney the State would not delve into Lashley’s past criminal activities. With this understanding between counsel, the trial judge never ruled on Lashley’s motion in limine.
It seems to me Judge Arnold runs against the grain of the record when he states the trial judge "told counsel that if she insisted on offering evidence that Lash-ley had no criminal record, [the judge] would permit the state to counter this evidence by showing that [Lashley] had committed juvenile offenses.” Ante at 1500 n. 1. Lashley’s attorney stated no less than three times on the record that she was not going to ask her witnesses about Lashley’s past criminal behavior. (T. 711-12). In response, the trial judge gently urged Lashley’s attorney to present mitigating evidence by telling her the state had a reasonable position that Lashley was not entitled to a mitigating circumstance in*1505struction without first presenting supporting evidence. (T. 712). Then, in the midst of Lashiey’s attorney’s fourth declaration that she was not going to present any evidence of Lashiey’s past criminal history, the trial judge observed, “If you are going to try to prove by these witnesses that this is [Lashiey’s] first problem with the law, when in fact it is not, I have ... problems with your proposition [that the state could not rebut this evidence].” (T., 714). In response, Lashiey’s attorney reiterated the prepared questions she intended to ask her witnesses — all of which were unrelated to Lashiey’s criminal history — and the trial judge told her “no problem.” (T. 715). In sum, the dialogue between counsel and the trial judge lends no support to Judge Arnold’s conclusion that Lashiey’s attorney “made a reasonable effort to introduce [mitigating] evidence but was prevented from doing so by an incorrect ruling of the state trial [judge].” Ante at 1500 n. 1.
Contrary to Lashiey’s argument that the trial judge interfered with his presentation of criminal history evidence, the Missouri Supreme Court found “it was defense counsel’s position that the absence of any criminal history being adduced warranted the [mitigating circumstance] instruction.” State v. Lashley, 667 S.W.2d at 715; (T. 725). Indeed, Lashiey’s attorney repeatedly explained to the trial judge she was “not going to ask [her witnesses] whether or not [Lashley] ha[s] a record.” (T. 725). Although the trial judge believed Lashiey’s attorney should' present mitigating evidence based on Lashiey’s past criminal history, it was the attorney’s strategy to forgo the introduction of any supporting evidence because she believed Lashley was entitled to the requested instruction regardless whether she presented supporting evidence. State v. Lashley, 667 S.W.2d at 715.
Thus, the trial judge in no way precluded Lashiey’s attorney from introducing mitigating circumstance evidence shedding light on the extent of Lashiey’s criminal history. In any event, the cause for the attorney’s concern — the State’s introduction of Lashiey’s criminal record as a juvenile — never materialized at trial. Lashiey’s attorney asked each and every question she anticipated asking; the State never broached the subject of Lashiey’s past criminal activities; and the trial judge did not interfere with the attorney’s trial strategy. - (T. 746-55).
Lashiey’s attorney may have feared that if she offered evidence Lashley had no significant history of criminal activity, the State might be permitted to respond with unfavorable evidence of Lashiey’s criminal behavior as a juvenile — evidence she deemed inadmissable under state law. Nevertheless, this did not relieve her burden to present Lashiey’s mitigating evidence in the first place. Simply put, Lash-iey’s attorney should have offered testimony about Lashiey’s behavioral history and then objected to the State’s cross-examination of her witnesses if it exceeded its permissible scope under Missouri law. Byrd v. Armontrout, 880 F.2d 1, 11 (8th Cir.1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). Had Lashley and his attorney followed this course, the record presumably would have supported Lashiey’s requested instruction, and if the State had offered evidence of Lashiey’s juvenile record or his underlying criminal behavior in a manner that violated state law, that error would have been preserved for review. Lashley and his attorney, however, decided against introducing any evidence showing Lashley did not have a significant criminal history. Thus, Judge Waters and I agree Lashiey’s claim that the trial judge prevented his attorney from establishing a mitigating circumstance in violation of Lockett must be rejected.
Conclusion
Although I agree this court must reject Lashiey’s contentions attacking his capital murder conviction, I disagree with the court’s decision to overturn Lashiey’s death sentence. I would thus affirm the district court’s denial of Lashiey’s application for a writ of habeas corpus.