WEEKS v. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS

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Syllabus
WEEKS v. ANGELONE, DIRECTOR, VIRGINIA
DEPARTMENT OF CORRECTIONS
certiorari to the united states court of appeals for
the fourth circuit
No. 99–5746. Argued December 6, 1999—Decided January 19, 2000
After a Virginia jury found petitioner Weeks guilty of capital murder,
the prosecution sought to prove two aggravating circumstances in the
penalty phase, and the defense presented 10 witnesses in mitigation.
During deliberations, the jurors sent the trial judge a note asking
whether, if they believed Weeks guilty of at least one of the aggra-
vating circumstances, it was their duty to issue the death penalty, or
whether they must decide whether to issue the death penalty or a life
sentence. The judge responded by directing them to a paragraph in
their instructions stating: “ ‘If you find from the evidence that the
Commonwealth has proved, beyond a reasonable doubt, either of the
two [aggravating circumstances], and as to that alternative, you are
unanimous, then you may fix the punishment . . . at death, or if you
believe from all the evidence that the death penalty is not justified,
then you shall fix the punishment . . . at [life] imprisonment.’ ” Over
two hours later, the jury returned its verdict, which read: “[H]aving
unanimously found that [Weeks’] conduct in committing the offense
[satisfied one of the aggravating circumstances], and having consid-
ered the evidence in mitigation . . . , [we] unanimously fix his punish-
ment at death.” The jurors were polled and all responded affirma-
tively that the foregoing was their verdict. In his direct appeal to the
Virginia Supreme Court, Weeks’ assignment of error respecting the
judge’s answering the jury’s question about mitigating circumstances
was number 44. That court affirmed Weeks’ conviction and sentence
on direct appeal and later dismissed his state habeas petition. The Fed-
eral District Court denied him federal habeas relief, and the Fourth
Circuit denied a certificate of appealability and dismissed his petition.
Held:
1. The Constitution is not violated when a trial judge directs a capital
jury’s attention to a specific paragraph of a constitutionally sufficient
instruction in response to a question regarding the proper consideration
of mitigating evidence. Weeks misplaces his reliance on Bollenbach v.
United States, 326 U. S. 607, 611, and Eddings v. Oklahoma, 455 U. S.
104, 114, both of which are inapposite in this case. Here, the trial judge
gave precisely the same Virginia capital instruction that was upheld in

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Syllabus
Buchanan v. Angelone, 522 U. S. 269, 277, as being sufficient to allow
the jury to consider mitigating evidence. The judge also gave a specific
instruction on mitigating evidence that was not given in Buchanan.
The Constitution does not require anything more, as a jury is presumed
both to follow its instructions, Richardson v. Marsh, 481 U. S. 200, 211,
and to understand a judge’s answer to its question, see, e. g., Armstrong
v. Toler, 11 Wheat. 258, 279. To presume otherwise would require
reversal every time a jury inquires about a matter of constitutional
significance, regardless of the judge’s answer. Here, the presumption
gains additional support from empirical factors, including that each of
the jurors affirmed the verdict in open court, they deliberated for more
than two hours after receiving the judge’s answer to their question, and
defense counsel specifically explained to them during closing argument
that they could find both aggravating factors proven and still not sen-
tence petitioner to death. At best, Weeks has demonstrated only that
there exists a slight possibility that the jury considered itself precluded
from considering mitigating evidence. Such a demonstration is insuffi-
cient to prove a constitutional violation under Boyde v. California, 494
U. S. 370, 380, which requires the showing of a reasonable likelihood
that the jury felt so restrained. It also appears that Weeks’ attorney
did not view the judge’s answer to the jury’s question as a serious flaw
in the trial at that time, since he made an oral motion to set aside the
death sentence and did not even mention this incident. And the low
priority and space which counsel assigned to the point on direct appeal
suggests that the present emphasis was an afterthought. Pp. 231–237.
2. Federal habeas relief is barred by 28 U. S. C. § 2254(d). For the
foregoing reasons, it follows a fortiori that the adjudication of the State
Supreme Court’s affirmance of Weeks’ sentence and conviction was nei-
ther “contrary to,” nor involved an “unreasonable application of,” any of
this Court’s decisions as the statute requires. P. 237.
176 F. 3d 249, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a
dissenting opinion, in which Ginsburg and Breyer, JJ., joined, and in
which Souter, J., joined with respect to all but Part I, post, p. 237.
Mark Evan Olive argued the cause for petitioner. With
him on the briefs were Glen A. Huff, Timothy M. Richard-
son, and Sterling H. Weaver.

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Opinion of the Court
Robert H. Anderson III, Assistant Attorney General of
Virginia, argued the cause for respondent. With him on the
brief was Mark L. Earley, Attorney General.*
Chief Justice Rehnquist delivered the opinion of the
Court.
This case presents the question whether the Constitution
is violated when a trial judge directs a capital jury’s atten-
tion to a specific paragraph of a constitutionally sufficient
instruction in response to a question regarding the proper
consideration of mitigating circumstances. We hold that it
is not and that habeas relief is barred by 28 U. S. C. § 2254(d)
(1994 ed., Supp. III).
Petitioner Lonnie Weeks, Jr., was riding from Washington,
D. C., to Richmond, Virginia, as a passenger in a car driven
by his uncle, Lewis Dukes. Petitioner had stolen the vehicle
in a home burglary earlier in the month. The two sped
past the marked car of Virginia State Trooper Jose Cavazos,
who was monitoring traffic. Trooper Cavazos activated
his emergency lights and took chase. After passing other
vehicles on the highway shoulder, Dukes stopped on an
exit ramp. Trooper Cavazos approached the driver’s side
of the stolen vehicle on foot. Upon the trooper’s request,
Dukes alighted and stood near the rear of the car. Trooper
Cavazos, still standing near the driver’s side, asked peti-
tioner to step out as well. As Weeks stepped out on the
passenger’s side, he carried a 9-millimeter semiautomatic
pistol loaded with hollow-point bullets. Petitioner pro-
ceeded to fire six bullets at the trooper, two of which en-
tered his body near the right and left shoulder straps of his
protective vest, and four of which entered his forearms and
left wrist. Trooper Cavazos died within minutes.
Petitioner was arrested the next morning. During rou-
tine questioning about his physical and mental state by clas-
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda-
tion as amicus curiae urging affirmance.

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sification officers, petitioner confessed, indicating that he was
considering suicide because he shot the trooper. Petitioner
also voluntarily wrote a letter to a jail officer admitting the
killing and expressing remorse.
Petitioner was tried in the Circuit Court for Prince Wil-
liam County, Virginia, in October 1993. After the jury had
found him guilty of capital murder, a 2-day penalty phase
followed. In this proceeding the prosecution sought to
prove two aggravating circumstances: that Weeks “would
commit criminal acts of violence that would constitute a
continuing serious threat to society” and that his conduct
was “outrageously or wantonly vile, horrible or inhuman, in
that it involved depravity of mind or aggravated battery.”
App. 192. During the penalty phase, the defense presented
10 witnesses, including petitioner, in mitigation.
The jury retired at 10:40 a.m. on the second day to begin
deliberations. At around noon, the judge informed counsel
that the jury had asked the following question:
“Does the sentence of life imprisonment in the State of
Virginia have the possibility of parole, and if so, under
what conditions must be met to receive parole?” App.
to Pet. for Cert. 90.
The judge responded to the jury’s question as follows:
“You should impose such punishment as you feel is just
under the evidence, and within the instructions of the
Court. You are not to concern yourselves with what
may happen afterwards.” Ibid.
The prosecution agreed with the judge’s response and de-
fense counsel objected. At 12:40 p.m., court reconvened
and the judge told the jurors that there would be a 1-hour
luncheon recess and that they could go to lunch or continue
deliberations, as a juror had apparently informed the bailiff
that they might be interested in working through lunch. At
12:45 p.m., the jury retired from the courtroom. At 3:15

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p.m., the judge informed counsel that he had received the
following written question from the jury:
“If we believe that Lonnie Weeks, Jr. is guilty of at least
1 of the alternatives, then is it our duty as a jury to issue
the death penalty? Or must we decide (even though he
is guilty of one of the alternatives) whether or not to
issue the death penalty, or one of the life sentences?
What is the Rule? Please clarify?” Id., at 91 (empha-
sis in original).
The judge wrote the following response: “See second para-
graph of Instruction #2 (Beginning with ‘If you find
from . . .’).” Ibid. The judge explained to counsel his an-
swer to the jury’s question:
“In instruction number 2 that was given to them, in the
second paragraph, it reads, ‘If you find from the evidence
that the Commonwealth has proved, beyond a reason-
able doubt, either of the two alternatives, and as to that
alternative, you are unanimous, then you may fix the
punishment of the defendant at death, or if you believe
from all the evidence that the death penalty is not justi-
fied, then you shall fix the punishment of the defendant
at imprisonment for life, or imprisonment for life with a
fine not to exceed $100,000.’
“I don’t believe I can answer the question any clearer
than the instruction, so what I have done is referred
them to the second paragraph of instruction number 2,
and I told them beginning with, ‘if you find from,’ et
cetera, et cetera, for them to reread that paragraph.” 1
App. 222–223.
1 Instruction No. 2, in its entirety, read:
“You have convicted the defendant of an offense which may be punished
by death. You must decide whether the defendant shall be sentenced to
death or to imprisonment for life or to imprisonment for life and a fine of
a specific amount, but not more than $100,000.00. Before the penalty can

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The prosecution stated that the judge’s solution was ap-
propriate. Defense counsel disagreed, and stated:
“Your Honor, we would ask that Your Honor instruct the
jury that even if they find one or both of the mitigating
factors—I’m sorry, the factors that have been proved
beyond a reasonable doubt, that they still may impose a
life sentence, or a life sentence plus a fine.” Id., at 223.
Defense counsel asked that his objection be noted.
More than two hours later, the jury returned. The clerk
read its verdict:
“[W]e the jury, on the issue joined, having found the
defendant Lonnie Weeks, Jr., guilty of capital murder,
and having unanimously found that his conduct in com-
mitting the offense is outrageously or wantonly vile, hor-
rible or inhumane, in that it involved depravity of mind
and or aggravated battery, and having considered the
evidence in mitigation of the offense, unanimously fix
be fixed at death, the Commonwealth must prove beyond a reasonable
doubt at least one of the following two alternatives:
“1. That, after consideration of his history and background, there is a
probability that he would commit criminal acts of violence that would con-
stitute a continuing serious threat to society; or
“2. That his conduct in committing the offense was outrageously or
wantonly vile, horrible or inhuman, in that it involved depravity of mind
or aggravated battery to the victim beyond the minimum necessary to
accomplish the act of murder.
“If you find from the evidence that the Commonwealth has proved be-
yond a reasonable doubt either of the two alternatives, and as to that
alternative you are unanimous, then you may fix the punishment of the
defendant at death or if you believe from all the evidence that the death
penalty is not justified, then you shall fix the punishment of the defendant
at life imprisonment or imprisonment for live [sic] and a fine of a specific
amount, but not more than $100,000.00.
“If the Commonwealth has failed to prove beyond a reasonable doubt at
least one of the alternatives, then you shall fix the punishment of the
defendant at life imprisonment or imprisonment for live [sic] and a fine
of a specific amount, but not more than $100,000.00.” App. 192–193.

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his punishment at death . . . .” Id., at 225 (emphasis
added).
The jurors were polled and all responded affirmatively that
the foregoing was their verdict in the case.
Petitioner presented 47 assignments of error in his direct
appeal to the Virginia Supreme Court, and the assignment
of error respecting the judge’s answering the jury’s question
about mitigating circumstances was number 44. The Vir-
ginia Supreme Court affirmed petitioner’s conviction and
sentence, holding that the claims petitioner advances here
lack merit. Weeks v. Virginia, 248 Va. 460, 465–466, 476–
477, 450 S. E. 2d 379, 383, 390 (1994), cert. denied, 516 U. S.
829 (1995). The Virginia Supreme Court dismissed petition-
er’s state habeas petition as jurisdictionally barred on timeli-
ness grounds. The District Court denied petitioner’s re-
quest for federal habeas relief, and the Court of Appeals for
the Fourth Circuit denied a certificate of appealability and
dismissed his petition. 176 F. 3d 249 (1999). We granted
certiorari, 527 U. S. 1060 (1999), and now affirm.
Petitioner relies heavily on our decisions in Bollenbach v.
United States, 326 U. S. 607 (1946), and Eddings v. Okla-
homa, 455 U. S. 104 (1982). Bollenbach involved a supple-
mental instruction by the trial court following an inquiry
from the jury—in that respect it is like the present case—
but the instruction given by the trial court in Bollenbach
was palpably erroneous. 326 U. S., at 611. In this respect
it is quite unlike the present case. Eddings arose out of a
bench trial in a capital case, and this Court reversed a sen-
tence of death because the trial judge had refused to consider
mitigating evidence: “[I]t was as if the trial judge had in-
structed a jury to disregard the mitigating evidence Eddings
proffered on his behalf.” 455 U. S., at 114.
Here the trial judge gave no such instruction. On the
contrary, he gave the instruction that we upheld in Bu-
chanan v. Angelone, 522 U. S. 269 (1998), as being sufficient
to allow the jury to consider mitigating evidence. And in

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addition, he gave a specific instruction on mitigating evi-
dence—an instruction that was not given in Buchanan—in
which he told the jury that “[y]ou must consider a mitigating
circumstance if you find there is evidence to support it.” 2
Even the dissenters in Buchanan said that the ambiguity
that they found in the instruction there given would have
been cleared up by “some mention of mitigating evidence
anywhere in the instructions.” Id., at 283.
In Buchanan, we considered whether the Eighth Amend-
ment required that a capital jury be instructed on particu-
lar mitigating factors. Buchanan’s jury was given precisely
the same Virginia pattern capital instruction that was given
to Weeks’ jury. See id., at 272, and n. 1. We noted that
our cases have established that the sentencer may not be
precluded from considering, and may not refuse to consider,
any constitutionally relevant mitigating evidence, and that
the State may structure the jury’s consideration of mitiga-
tion so long as it does not preclude the jury from giving
effect to it. Id., at 276. We further noted that the “stand-
ard for determining whether jury instructions satisfy these
principles was ‘whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evi-
2 That instruction was titled “EVIDENCE IN MITIGATION” and
stated in full:
“Mitigation evidence is not evidence offered as an excuse for the crime
of which you have found defendant guilty. Rather, it is any evidence
which in fairness may serve as a basis for a sentence less than death. The
law requires your consideration of more than the bare facts of the crime.
“Mitigating circumstances may include, but not be limited to, any facts
relating to defendant’s age, character, education, environment, life and
background, or any aspect of the crime itself which might be considered
extenuating or tend to reduce his moral culpability or make him less de-
serving of the extreme punishment of death.
“You must consider a mitigating circumstance if you find there is evi-
dence to support it. The weight which you accord a particular mitigating
circumstance is a matter of your judgment.” Id., at 195.

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dence.’ ” Ibid. (quoting Boyde v. California, 494 U. S. 370,
380 (1990)). But we stated that we have never held that the
State must structure in a particular way the manner in
which juries consider mitigating evidence. 522 U. S., at 276.
We concluded that the Virginia pattern jury instruction at
issue there, and again at issue here, did not violate those
principles:
“The instruction did not foreclose the jury’s consider-
ation of any mitigating evidence. By directing the jury
to base its decision on ‘all the evidence,’ the instruc-
tion afforded jurors an opportunity to consider mitigat-
ing evidence. The instruction informed the jurors that
if they found the aggravating factor proved beyond a
reasonable doubt then they ‘may fix’ the penalty at
death, but directed that if they believed that all the evi-
dence justified a lesser sentence then they ‘shall’ impose
a life sentence. The jury was thus allowed to impose a
life sentence even if it found the aggravating factor
proved.” Id., at 277.
But, as noted above, the jury in this case also received an
explicit direction to consider mitigating evidence—an in-
struction that was not given to the jury in Buchanan.
Thus, so far as the adequacy of the jury instructions is
concerned, their sufficiency here follows a fortiori from
Buchanan.3
3 Justice Stevens attempts to distinguish the instruction given here
from that given in Buchanan v. Angelone, 522 U. S., at 272, n. 1, on the
basis that the first paragraph of the “Weeks instructions contain[s] a
longer description” of the aggravating circumstances. Post, at 239 (dis-
senting opinion). The first paragraph is longer here because the prosecu-
tion in Buchanan sought to prove only one aggravating circumstance.
See 522 U. S., at 271. The mere addition of the description of another
aggravating circumstance in the first paragraph, however, does not at all
affect the second clause of the second paragraph of the instruction—the
clause that Justice Stevens finds “ambiguous.” Post, at 241.
More importantly, Justice Stevens, after stating that his “point is
best made by quoting the instruction itself,” post, at 239, fails to quote

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Given that petitioner’s jury was adequately instructed,
and given that the trial judge responded to the jury’s ques-
tion by directing its attention to the precise paragraph of
the constitutionally adequate instruction that answers its
inquiry, the question becomes whether the Constitution re-
quires anything more. We hold that it does not.
A jury is presumed to follow its instructions. Richardson
v. Marsh, 481 U. S. 200, 211 (1987). Similarly, a jury is pre-
sumed to understand a judge’s answer to its question. See,
e. g., Armstrong v. Toler, 11 Wheat. 258, 279 (1826) (opinion
of Marshall, C. J.). Weeks’ jury did not inform the court
that after reading the relevant paragraph of the instruction,
it still did not understand its role. See ibid. (“Had the jury
desired further information, they might, and probably would,
have signified their desire to the court. The utmost willing-
ness was manifested to gratify them, and it may fairly be
presumed that they had nothing further to ask”). To pre-
sume otherwise would require reversal every time a jury
inquires about a matter of constitutional significance, re-
gardless of the judge’s answer.
Here the presumption gains additional support from
several empirical factors. First and foremost, each of the
jurors affirmed in open court the verdict which included a
finding that they had “considered the evidence in mitiga-
the third paragraph of the instruction, post, at 239–240. That paragraph
expressly applies when the jury finds that the prosecution failed to prove
either aggravating circumstance. Specifically, it instructs that if the jury
finds no aggravating circumstances, then it must impose a life sentence.
See n. 1, supra. The third paragraph stands in contrast to the second
paragraph, which expressly applies when the jury finds that the prosecu-
tion proved one or both of the aggravating circumstances. The second
paragraph offers the jury the option of imposing whichever sentence—
death or life imprisonment—it feels is justified in that situation. The ex-
istence of the third paragraph makes the function of the second paragraph
even clearer.

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tion of the offense.” 4 App. 225. It is also significant, we
think, that the jurors deliberated for more than two hours
after receiving the judge’s answer to their question. Over
41 ⁄ 2 hours after the jury retired to begin deliberations, the
jury asked the question at issue. Again, the question was:
“If we believe that Lonnie Weeks, Jr. is guilty of at
least 1 of the alternatives, then is it our duty as a jury
to issue the death penalty? Or must we decide (even
though he is guilty of one of the alternatives) whether
or not to issue the death penalty, or one of the life sen-
tences? What is the Rule? Please clarify?” App. to
Pet. for Cert. 91 (emphasis in original).
The question indicates that at the time it was asked, the jury
had determined that the prosecution had proved one of the
two aggravating factors beyond a reasonable doubt. More
than two hours passed between the judge directing the jury’s
attention to the appropriate paragraph of the instruction
that answered its question and the jury returning its verdict.
We cannot, of course, know for certain what transpired dur-
ing those two hours. But the most likely explanation is that
the jury was doing exactly what it was instructed to do: that
is, weighing the mitigating circumstances against the aggra-
vating circumstance that it found to be proved beyond a rea-
sonable doubt. If, after the judge’s response to its question,
the jury thought that it was required to give the death pen-
alty upon finding of an aggravating circumstance, it is un-
likely that the jury would have consumed two more hours in
deliberation. This particular jury demonstrated that it was
4 Justice Stevens’ arguments concerning the lack of a jury verdict
form stating that the jury finds one or both aggravating circumstances
and sentences the petitioner to life imprisonment miss the mark. The life
sentence verdict forms do not suggest that a prerequisite for their use is
that the jury found no aggravating circumstances. See post, at 246, n. 8.
In any event, the claim here is that the trial judge’s response to the jury’s
question was constitutionally insufficient, not that the jury verdict forms
were unconstitutionally ambiguous.

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not too shy to ask questions, suggesting that it would have
asked another if it felt the judge’s response unsatisfactory.
Finally, defense counsel specifically explained to the jury
during closing argument that it could find both aggravating
factors proven and still not sentence Weeks to death. Thus,
once the jury received the judge’s response to its question,
it had not only the text of the instruction we approved in
Buchanan, but also the additional instruction on mitigation,
see n. 2, supra, and its own recollection of defense counsel’s
closing argument for guidance. At best, petitioner has dem-
onstrated only that there exists a slight possibility that the
jury considered itself precluded from considering mitigating
evidence. Such a demonstration is insufficient to prove a
constitutional violation under Boyde, which requires the
showing of a reasonable likelihood that the jury felt so re-
strained.5 See 494 U. S., at 380.
It also appears that petitioner’s attorneys did not view
the judge’s answer to the jury’s question as a serious flaw
in the trial at that time. Petitioner’s attorney made an oral
5 Justice Stevens states that the record establishes a “virtual cer-
tainty” that the jury did not understand that it could find an aggra-
vating circumstance and still impose a life sentence. Post, at 238. In
view of the different conclusion reached not only by this Court, but by the
Virginia trial judge, seven justices of the Supreme Court of Virginia, a
federal habeas District Judge, and three judges of the Court of Appeals
for the Fourth Circuit, this statement can only be described as extrava-
gant hyperbole.
The dissent also interprets the evidence of the jurors being in tears at
the time of the verdict as resulting from having performed what they
thought to be their “duty under the law” despite their “strong desire” to
impose the life sentence. Post, at 249. It is difficult enough to speculate
with confidence about the deliberations of jurors in a case such as this,
and still more difficult to speculate about their emotions at the time they
render a verdict. But if we were to join in this speculation, it is every
bit as plausible—if not more so—to think that the reason that jurors were
in tears was because they had just been through an exhausting, soul-
searching process that led to a conclusion that petitioner, despite the miti-
gating evidence he presented, still deserved the death sentence.

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Stevens, J., dissenting
motion to set aside the sentence after the verdict of death
was received, and did not even mention this incident in his
motion. And the low priority and space which his counsel
assigned to the point on his appeal to the Supreme Court of
Virginia suggests that the present emphasis has some of the
earmarks of an afterthought.
Because petitioner seeks a federal writ of habeas corpus
from a state sentence, we must determine whether 28
U. S. C. § 2254(d) (1994 ed., Supp. III) precludes such relief.
The Court of Appeals below held that it did. 176 F. 3d, at
261. We agree. Section 2254(d) prohibits federal habeas
relief on any claim “adjudicated on the merits in State court
proceedings,” unless that adjudication resulted in a decision
that was “contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U. S. C. §§ 2254(d)
and (1) (1994 ed., Supp. III). For the reasons stated above,
it follows a fortiori that the adjudication of the Supreme
Court of Virginia affirming petitioner’s conviction and sen-
tence neither was “contrary to,” nor involved an “unreason-
able application of,” any of our decisions.
The judgment of the Court of Appeals is
Affirmed.
Justice Stevens, with whom Justice Ginsburg and
Justice Breyer join, and with whom Justice Souter
joins with respect to all but Part I, dissenting.
Congress has directed us to apply “clearly established
Federal law” in the exercise of our habeas corpus jurisdic-
tion.1 The clearly established rule that should govern the
disposition of this case also emphasizes the importance of
1 The habeas statute, as amended in 1996, authorizes the issuance of
the writ if a state-court decision “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1) (1994
ed., Supp. III).

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clarity—clarity in the judge’s instructions when there is a
reasonable likelihood that the jury may misunderstand the
governing rule of law. In this case, as in Boyde v. Cali-
fornia, 494 U. S. 370, 380 (1990), we are confronted with a
claim that an instruction, though not erroneous, is suffi-
ciently ambiguous to be “subject to an erroneous interpre-
tation.” In Boyde, we held that “the proper inquiry in such
a case is whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evi-
dence.” Ibid.
The record in this case establishes, not just a “reason-
able likelihood” of jury confusion, but a virtual certainty that
the jury did not realize that there were two distinct legal
bases for concluding that a death sentence was not “justi-
fied.” The jurors understood that such a sentence would
not be justified unless they found at least one of the two
alleged aggravating circumstances. Despite their specific
request for enlightenment, however, the judge refused to tell
them that even if they found one of those circumstances, they
did not have a “duty as a jury to issue the death penalty.”
App. 217.
Because the Court creatively suggests that petitioner’s
claim has “the earmarks of an afterthought,” ante, at 237,
it is appropriate to note that his trial counsel specifically
and repeatedly argued that both the instructions and the
verdict forms were inadequate because “ ‘the jury has to be
instructed that . . . even if they find the aggravating factors
beyond a reasonable doubt, . . . they can still give effect to
the evidence in mitigation by sentencing the defendant to
life, as opposed to death.’ ” App. 178. See also id., at 179,
180, 185–186, 223.
Four different aspects of the record cumulatively pro-
vide compelling support for the conclusion that this jury
did not understand that the law authorized it “not to issue
the death penalty” even though it found petitioner “guilty

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of at least 1” aggravating circumstance. Id., at 217. Each
of these points merits separate comment: (1) the text of the
instructions; (2) the judge’s responses to the jury’s inquiries;
(3) the verdict forms given to the jury; and (4) the court
reporter’s transcription of the polling of the jury.
I
Because the prosecutor in this case relied on two separate
aggravating circumstances, the critical instruction given in
this case differed from that given and upheld by this Court
in Buchanan v. Angelone, 522 U. S. 269 (1998). The Weeks
instructions contain a longer description of the ways in
which the jury would be justified in imposing the death
penalty; this made it especially unlikely that the jury would
understand that it could lawfully impose a life sentence by
either (1) refusing to find an aggravator, or (2) concluding
that even if it found an aggravator, the mitigating evidence
warranted a life sentence. The point is best made by quot-
ing the instruction itself:
“ ‘Before the penalty can be fixed at death, the Com-
monwealth must prove beyond a reasonable doubt, at
least one of the following two alternatives: one, that,
after consideration of his history and background, there
is a probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society, or two; that his conduct in committing
the offense was outrageously or wantonly vile, horrible,
or inhumane, in that it involved depravity of mind and
aggravated battery to the victim, beyond the minimum
necessary to accomplish the act of murder.
“ ‘If you find from the evidence that the Common-
wealth has proved beyond a reasonable doubt, either of
the two alternatives, and as to that alternative you are
unanimous, then you may fix the punishment of the de-
fendant at death; or, if you believe from all the evidence
that the death penalty is not justified, then you shall fix

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240 WEEKS v. ANGELONE
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the punishment of the defendant at life imprisonment,
or imprisonment for life and a fine of a specific amount,
but not more than $100,000.’ ” App. 199–200.
The first paragraph and the first half of the second are
perfectly clear. They unambiguously tell the jury: “In order
to justify the death penalty, you must find an aggravating
circumstance.” 2 The second clause in the second paragraph
is, however, ambiguous. It could mean either:
(1) “even if you find one of the two aggravating alterna-
tives, if you believe from all the evidence that the death
penalty is not justified because the mitigating evidence
outweighs the aggravating evidence, then you shall fix
the punishment [at life]”; or
(2) “if you believe from all the evidence that the death
penalty is not justified because neither of the aggravat-
ing circumstances has been proven beyond a reasonable
doubt, then you shall fix the punishment [at life].”
It is not necessary to reiterate Justice Breyer’s reasons
for believing that the latter message is the one a nonlawyer
would be most likely to receive. See Buchanan, 522 U. S.,
at 281–284 (dissenting opinion). Nor is it necessary to dis-
agree with the Court’s view in Buchanan that trained law-
yers and logicians could create a “simple decisional tree” that
would enable them to decipher the intended meaning of the
instruction, see id., at 277–278, n. 4, to identify a serious risk
that this jury failed to do so.
That risk was magnified by the fact that the instructions
did not explain that there were two reasons why mitigating
evidence was relevant to its penalty determination. The in-
structions did make it clear that mitigating evidence con-
cerning the history and background of the defendant should
2 That message was reiterated later in the instructions, see ante, at 229–
230, n. 1; ante, at 233–234, n. 3. Reiterating what has already been clearly
stated does not serve to clarify an ambiguous statement.

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be considered when deciding whether either aggravating cir-
cumstance had been proved. The instructions did not, how-
ever, explain that mitigating evidence could serve another
purpose—to provide a lawful justification for a life sentence
even if the jury found at least one aggravating circumstance.
Indeed, given the fact that the first task assigned to the jury
was to decide whether “after consideration of his history
and background, there is a probability that he would commit
criminal acts of violence that would constitute a continuing
serious threat to society,” App. 192–193 (emphasis added), it
would have been reasonable for the jury to infer that his
history and background were only relevant to the threshold
question whether an aggravator had been proved. It is of
critical importance in understanding the jury’s confusion that
the instructions failed to inform the jury that mitigating evi-
dence serves this dual purpose.
II
The jurors had a written copy of the judge’s instructions
with them in the jury room during their deliberations. The
fact that the jurors submitted the following written inquiry
to the trial judge after they had been deliberating for several
hours demonstrates both that they were uncertain about the
meaning of the ambiguous clause that I have identified, and
that their uncertainty had not been dissipated by their recol-
lection of anything said by counsel.
“If we believe that Lonnie Weeks, Jr., is guilty of at
least 1 of the alternatives, then is it our duty as a jury
to issue the death penalty? Or must we decide (even
though he is guilty of one of the alternatives) whether
or not to issue the death penalty, or one of the life
sentences? What is the Rule? Please clarify.” Id.,
at 217.
The only portion of the written instructions that could pos-
sibly have prompted this inquiry is the second half of the

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second paragraph of the instruction quoted above. The fact
that the jurors asked this question about that instruction
demonstrates beyond peradventure that the instruction had
confused them. There would have been no reason to ask the
question if they had understood the instruction to authorize
a life sentence even though they found that an aggravator
had been proved.
Although it would have been easy to do so, the judge did
not give the jurors a straightforward categorical answer to
their simple question; he merely told them to reexamine
the portion of the instructions that they, in effect, had al-
ready said they did not understand. The text of their ques-
tion indicates that they believed that they had a duty “to
issue the death penalty” if they believed that “Weeks . . . is
guilty of at least 1 of the alternatives.” Ibid. Without a
simple, clear-cut statement from the judge that that belief
was incorrect, there was surely a reasonable likelihood that
they would act on that belief.3
Instead of accepting a commonsense interpretation of the
colloquy between the jury and the judge, the Court first re-
lies on a presumption that the jury understood the instruc-
tion (a presumption surely rebutted by the question itself),
3 The Court suggests this likelihood is impossible in part because, even
if the jury were confused by the judge’s response, it had not only the text
of the instruction but also the benefit of defense counsel’s oral argument,
in which counsel averred that the jury could award a life sentence even
if it found an aggravating factor. See ante, at 236. But this state-
ment by counsel, coming as it did, of course, before the jury began delib-
erations, apparently did not prevent the jury from asking the question in
the first place. Moreover, as this Court wisely noted in Boyde v. Califor-
nia, 494 U. S. 370, 384 (1990): “[A]rguments of counsel generally carry less
weight with a jury than do instructions from the court. The former are
usually billed in advance to the jury as matters of argument, not evidence,
and are likely viewed as the statements of advocates; the latter, we have
often recognized, are viewed as definitive and binding statements of the
law.” (Citing cases; citation omitted.)

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ante, at 234–236, and then presumes that the jury must have
understood the judge’s answer because it did not repeat its
question after re-reading the relevant paragraph, and contin-
ued to deliberate for another two hours. But if the jurors
found it necessary to ask the judge what that paragraph
meant in the first place, why should we presume that they
would find it any less ambiguous just because the judge told
them to read it again? It seems to me far more likely that
the reason they did not ask the same question a second time
is that the jury believed that it would be disrespectful to
repeat a simple, unambiguous question that the judge had
already refused to answer directly. The fact that it had pre-
viously asked the judge a different question—also related to
the effect of a sentencing decision, App. 217—that he had
also refused to answer would surely have tended to discour-
age a repetition of the question about the meaning of his
instructions.4
By the Court’s logic, a rather exceptionally assertive jury
would have to question the judge at least twice and maybe
more on precisely the same topic before one could find it no
more than “reasonably likely” that the jury was confused.5
4 The Court relies on Chief Justice Marshall’s opinion in Armstrong v.
Toler, 11 Wheat. 258, 279 (1826), as support for its presumption that the
jury’s failure to repeat its question indicates that it understood the judge’s
answer. In that case, however, it was the jury’s question that was argua-
bly unclear; the Court merely assumed that “the jury could not have in-
tended to put a question which had been already answered.” In this case,
in contrast, there is no mystery about what the jury wanted to know;
the mystery is why the trial judge was unable or unwilling to give it a
direct answer.
5 The Court seeks to justify its reliance on the improbable presumption
that the jury correctly deciphered the judge’s ambiguous answer to its
straightforward question by pronouncing: “To presume otherwise would
require reversal every time a jury inquires about a matter of constitutional
significance, regardless of the judge’s answer.” Ante, at 234. For two
obvious reasons that is not so. First, a simple, direct answer to the jury’s
question would have avoided the error. Second, clearly established law

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But given the Court’s apt recognition that we cannot, of
course, actually know what occupied the jury during its
final deliberations, ante, at 235, and in light of the explana-
tion I have just offered, it is at the very least equally likely
that the two hours of deliberation following the judge’s
answer were devoted to continuing debate about the same
instruction, as they were to weighing aggravating and miti-
gating evidence (having been magically satisfied by the repe-
tition of the instruction that had not theretofore answered
its question).
When it comes to the imposition of the death penalty,
we have held repeatedly that justice and “ ‘the fundamental
respect for humanity underlying the Eighth Amendment’ ”
require jurors to give full effect to their assessment of the
defendant’s character, circumstances, and individual worth.
Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). In this con-
text, even if one finds the explanations of the jury’s conduct
here in equipoise, a 50–50 chance that the jury has not car-
ried out this mandate seems to me overwhelming grounds
for reversal.
Other than the Court’s reliance on inapplicable presump-
tions and speculation, there is no reason to believe that the
jury understood the judge’s answer to its question. As we
squarely held in Boyde, the “defendant need not establish
that the jury was more likely than not to have been im-
permissibly inhibited by the instruction” to satisfy the
clearly established “reasonable likelihood” standard. 494
U. S., at 380. The Court’s application of that standard in
this case effectively drains it of meaning.
requires that the issue be resolved, not on the basis of a presumption that
flows from the positing of any single question, but by deciding whether,
under all of the circumstances, there was a “reasonable likelihood” that
the jury was confused as to the relevance of mitigating evidence in its
decision. The Court’s fear of constant reversal in this regard is thus
vastly overstated.

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III
The judge provided the jury with five verdict forms, three
of which provided for the death penalty and two for a life
sentence. Three death forms were appropriate because the
death penalty might be justified by a finding that the first,
the second, or both aggravating circumstances had been
proved. One would expect the two life forms to cover the
two alternatives, first that no aggravator had been proved,
and second that despite proof of at least one aggravator, the
mitigating circumstances warranted a life sentence. But
that is not why there were two forms; neither referred to
the possibility of a life sentence if an aggravator had been
proved. Rather, the two life alternatives merely presented
the jury with a choice between life plus a fine and a life
sentence without a fine.
The first form read as follows:
“We, the jury, on the issue joined, having found the
defendant, LONNIE WEEKS, JR., GUILTY of CAPI-
TAL MURDER and having unanimously found after
consideration of his history and background that there
is a probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society, and having considered the evidence in
mitigation of the offense, unanimously fix his punish-
ment at death.” App. 196.
The jury ultimately refused to select this first form, which
would have indicated a finding that there was a probability
that petitioner would commit additional crimes that would
constitute a serious threat to society. In doing so, it un-
questionably gave weight to the unusually persuasive miti-
gating evidence offered by the defense—evidence that in-
cluded not only petitioner’s personal history but his own
testimony describing the relevant events and his extreme
remorse. As I explained above, the fact that the jury recog-
nized the relevance of the mitigating “history and back-

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ground” evidence to the question whether the aggravator
had been proved sheds no light on the question whether it
understood that such evidence would also be relevant on
the separate question whether a life sentence would be
appropriate even if Weeks was “guilty of at least 1 of the
alternatives.” Id., at 217.
The jury’s refusal to find that petitioner would constitute
a continuing threat to society also explains why it did not
use the second form, which covered the option of a death
penalty supported by both aggravators.6 The choice then,
was between the third alternative, which included a finding
that the second aggravator had been proved,7 and the fourth
or fifth alternatives, neither of which included any such
finding.8 Despite the fact that trial counsel had expressly
6 That form read as follows: “We, the jury, on the issue joined, having
found the defendant, LONNIE WEEKS, JR., GUILTY of CAPITAL
MURDER and having unanimously found after consideration of his his-
tory and background that there is a probability that he would commit
criminal acts of violence that would constitute a continuing serious treat
[sic] to society, and having unanimously found that his conduct in commit-
ting the offense is outrageously or wantonly vile, horrible or inhuman in
that it involved depravity of mind and/or aggravated battery and having
considered the evidence in mitigation of the offense, unanimously fix his
punishment at death.” App. 196–197.
7 This form, the one ultimately filed by the jury, read: “We, the jury,
on the issue joined, having found the defendant, LONNIE WEEKS, JR.,
GUILTY of CAPITAL MURDER and having unanimously found that his
conduct in committing the offense is outrageously or wantonly vile, horri-
ble or inhuman in that it involved depravity of mind and/or aggravated
battery and having considered the evidence in mitigation of the offense,
unanimously fix his punishment at death.” Id., at 228.
8 The fourth form read: “We, the jury, on the issue joined, having found
the defendant, LONNIE WEEKS, JR., GUILTY of CAPITAL MURDER
and having considered all of the evidence in aggravation and mitigation of
such offense, fix his punishment at imprisonment for life.” Id., at 197–198.
The fifth form was identical except for providing that Weeks’ punishment
was to be fixed “at imprisonment for life and a fine” for an amount to be
filled in by the jury. Id., at 198.

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objected to the verdict forms because they “do not expressly
provide for a sentence of life imprisonment, upon finding
beyond a reasonable doubt, on one or both of the aggravating
factors,” id., at 185–186, the judge failed to use forms that
would have answered the question that the jury asked dur-
ing its deliberations.
The ambiguity of the forms also helps further explain why
the Court is wrong in its speculation as to the jury’s final
hours of deliberation following the judge’s response to its
question. The Court postulates that before the jury asked
whether it had a duty to issue the death penalty “[i]f we
believe that Lonnie Weeks, Jr. is guilty of at least 1 of the
alternatives,” the jury had already so decided. Thus, the
remaining hours of deliberation must have been spent weigh-
ing the mitigating circumstances against the aggravating
circumstance. Ante, at 235. Of course, the text of the
question, which used the word “if ” rather than the word
“since,” does not itself support that speculation. More im-
portant, however—inasmuch as we cannot know for certain
what transpired during those deliberations—is the fact that
after it eliminated the first two verdict options, the remain-
ing forms identified a choice between a death sentence based
on a guilty finding on “1 of the alternatives” and a life sen-
tence without any such finding. In my judgment, it is thus
far more likely that the conscientious jurors were strug-
gling with the question whether the mitigating evidence not
only precluded a finding that petitioner was a continuing
threat to society, but also precluded a finding “that his
conduct in committing the offense is outrageously or wan-
tonly vile, horrible or inhuman in that it involved depravity
of mind and/or aggravated battery.” App. 228. And that
question was answered neither by the instruction itself, nor
by the judge’s reference to the instruction again, nor, we now
see, by the text of the jury forms with which the jury was
finally faced.

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IV
The Court repeatedly emphasizes the facts that the jury
was told to consider the mitigating evidence and that the
verdict forms expressly recite that the jury had given con-
sideration to such evidence. As its refusal to find the first
aggravator indicates, the jury surely did consider that evi-
dence and presumably credited the testimony of petitioner
and the other defense witnesses. But, as I have explained,
see supra, at 240–241, there is a vast difference between con-
sidering that evidence as relevant to the question whether
either aggravator had been established, and assuming that
the jurors were sufficiently sophisticated to understand that
it would be lawful for them to rely on that evidence as a
basis for a life sentence even if they found the defendant
“guilty of at least 1 of the alternatives.” For that reason,
the Court’s reliance, ante, at 234–235, on the fact that the
jurors affirmed their verdict when polled in open court is
misplaced.
The most significant aspect of the polling of the jury is
a notation by the court reporter that is unique. (At least
I do not recall seeing a comparable notation in any of the
transcripts of capital sentencing proceedings that I have
reviewed during the past 24-plus years.) The transcript
states that, as they were polled, “a majority of the jury mem-
bers [were] in tears.” App. 225. Given the unusually per-
suasive character of the mitigating evidence including peti-
tioner’s own testimony,9 it is at least “reasonable” to infer
9 The evidence showed, among other things, that before this incident
Weeks had been a well-behaved student and a star high school athlete,
id., at 130–133, who lived in a poor community, id., at 131–132, and who
was raised by a well-meaning grandmother because of his mother’s drug
addiction, id., at 143, 167; that Weeks fell in with a bad crowd, id., at 150,
153, missing his chance for college when his girlfriend became pregnant
and when he decided to stay and help her raise the child, id., at 109; and,
as the jury learned in Weeks’ own words, that he was extremely remorse-
ful, id., at 127–128.

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that the conscientious jury members performed what they
regarded as their duty under the law, notwithstanding a
strong desire to spare the life of Lonnie Weeks. Tragically,
there is a “reasonable likelihood” that they acted on the basis
of a misunderstanding of that duty.
I respectfully dissent.