concurring.
The majority clearly explains the central dilemma in this case: that “the trial court’s instruction that it was inappropriate for the jury to consider parole eligibility did not refer the jury back to the [original] instructions” but instead “plainly contradicted those instructions.” Maj. op. at 1166. The majority then correctly applies the Supreme Court’s decisions in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001). I therefore join the majority opinion in full.
I write separately only to emphasize that the key to understanding Simmons— and therefore Shafer — is the concept of “false choice,” that is, a choice that may be misleading to the jury. See Maj. op. at 1166 (noting that “Simmons rests upon eliminating a jury’s misunderstanding so the jury will not perceive a ‘false choice’ ”). Notably, this court and several state jurists have made this very point in prior cases. See, e.g., Mayes v. Gibson, 210 F.3d 1284, 1294 (10th Cir.2000) (concluding that there was no Simmons violation because “[n]o such false choice was created here” as in Simmons); Booker v. State, 773 So.2d 1079, 1097-98 (Fla.2000) (noting that “the spirit of the United States Supreme Court’s decision in Simmons v. South Carolina” is that “[t]his Court should not be a party to a process that affirmatively misleads a sentencing jury as to the true meaning and effect of the sentencing alternatives presented to it”) (An-stead, J., concurring in part and dissenting in part); State v. Shafer, 340 S.C. 291, 531 S.E.2d 524, 534 (2000) (Finney, C.J., dissenting) (noting that “the overriding principle to be drawn from [Simmons ] is that due process is violated when a jury’s speculative misunderstanding about a capital defendant’s parole eligibility is allowed to go uncorrected”), overruled by Shafer, 532 U.S. at-, 121 S.Ct. at 1271.
In Simmons, a plurality of the Court emphasized repeatedly the false choice confronting the jury in reaching its holding that, “where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Simmons, 512 U.S. at 156, 114 S.Ct. 2187 (plurality opinion). For example, the plurality concluded its opinion by stating that “[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant will never be released on parole.” Id. at 171, 114 S.Ct. 2187 (plurality opinion) (emphasis added); see also id. at 161, 114 S.Ct. 2187 (noting that, “[i]n this case, the jury reasonably may have believed that [the] petitioner could be released on parole if he were not executed”; adding that, “[t]o the extent this misunderstanding pervaded the jury’s deliberations, it had the effect of creating a false choice between sentencing [the] petitioner to death and sentencing him to a limited period of incarceration”) (plurality opinion) (emphasis added).
In Shafer, the concept of false choice was again highlighted — but this time by a majority of the Court. In its opinion, the majority explicitly stated that Simmons’s due process concerns arise when there are “ ‘misunderstanding^]’ to avoid” or “ ‘false choice[s]’ to guard against.” Shafer, 532 U.S. at-, 121 S.Ct. at 1272 (quoting *1168Simmons, 512 U.S. at 161, 114 S.Ct. 2187 (plurality opinion)). Because both Simmons and Shafer invoke false choice in reaching their respective conclusions, I believe that this court’s inquiry into Simmons properly focuses on this concept.