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SUPREME COURT OF THE UNITED STATES
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No. 81-5321
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1982.SCT.42812 <http://www.versuslaw.com>; 458 U.S. 782, 102
S. Ct. 3368, 73 L. Ed. 2d 1140, 50 U.S.L.W. 5087
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decided: July 2, 1982.
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EDMUND
v.
FLORIDA
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CERTIORARI TO THE SUPREME COURT OF FLORIDA.
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James S. Liebman argued the cause pro hac vice for petitioner. With
him on the briefs were William C. McLain, Jack Greenberg, James M. Nabrit
III, Joel Berger, John Charles Boger, Deborah Fins, and Anthony G.
Amsterdam.
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Lawrence A. Kaden, Assistant Attorney General of Florida, argued the
cause pro hac vice for respondent. With him on the brief were Jim Smith,
Attorney General, and George R. Georgieff and Raymond L. Marky, Assistant
Attorneys General.*fn*
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White, J., delivered the opinion of the Court, in which Brennan,
Marshall, Blackmun, and Stevens, JJ., joined. Brennan, J., filed a
concurring opinion, post, p. 801. O'connor, J., filed a dissenting
opinion, in which Burger, C. J., and Powell and Rehnquist, JJ., joined,
post, p. 801.
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Author: White
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JUSTICE WHITE delivered the opinion of the Court.
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I
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The facts of this case, taken principally from the opinion of the
Florida Supreme Court, are as follows. On April 1, ,
at approximately 7:45 a. m., Thomas and Eunice Kersey, aged 86 and 74,
were robbed and fatally shot at their farmhouse in central Florida. The
evidence showed that Sampson and Jeanette Armstrong had gone to the back
door of the Kersey house and asked for water for an overheated car. When
Mr. Kersey came out of the house, Sampson Armstrong grabbed him, pointed a
gun at him, and told Jeanette Armstrong to take his money. Mr. Kersey
cried for help, and his wife came out of the house with a gun and shot
Jeanette Armstrong, wounding her. Sampson Armstrong, and perhaps Jeanette
Armstrong, then shot and killed both of the Kerseys, dragged them into the
kitchen, and took their money and fled.
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Two witnesses testified that they drove past the Kersey house between
7:30 and 7:40 a. m. and saw a large cream- or yellow-colored car parked
beside the road about 200 yards from the house and that a man was sitting
in the car. Another witness testified that at approximately 6:45 a. m. he
saw Ida Jean Shaw, petitioner's common-law wife and Jeanette Armstrong's
mother, driving a yellow Buick with a vinyl top which belonged to her and
petitioner Earl Enmund. Enmund was a passenger in the car along with an
unidentified woman. At about 8 a. m. the same witness saw the car return
at a high rate of speed. Enmund was driving, Ida Jean Shaw was in the
front seat, and one of the other two people in the car was lying down
across the back seat.
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Enmund, Sampson Armstrong, and Jeanette Armstrong were indicted for
the first-degree murder and robbery of the Kerseys. Enmund and Sampson
Armstrong were tried together.*fn1 The prosecutor maintained in his closing
argument that "Sampson Armstrong killed the old people." Record 1577. The
judge instructed the jury that "[the] killing of a human
being while engaged in the perpetration of or in the attempt to perpetrate
the offense of robbery is murder in the first degree even though there is
no premeditated design or intent to kill." App. 6. He went on to instruct
them that
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"[in] order to sustain a conviction of first degree murder while
engaging in the perpetration of or in the attempted perpetration of the
crime of robbery, the evidence must establish beyond a reasonable doubt
that the defendant was actually present and was actively aiding and
abetting the robbery or attempted robbery, and that the unlawful killing
occurred in the perpetration of or in the attempted perpetration of the
robbery." Id., at 9.
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The jury found both Enmund and Sampson Armstrong guilty of two counts
of first-degree murder and one count of robbery. A separate sentencing
hearing was held and the jury recommended the death penalty for both
defendants under the Florida procedure whereby the jury advises the trial
judge whether to impose the death penalty. See Fla. Stat. § 921.141(2)
(1981). The trial judge then sentenced Enmund to death on the two counts
of first-degree murder. Enmund appealed, and the Florida Supreme Court
remanded for written findings as required by Fla. Stat. § 921.141(3)
(1981). The trial judge found four statutory aggravating circumstances:
the capital felony was committed while Enmund was engaged in or was an
accomplice in the commission of an armed robbery, Fla. Stat. §
921.141(5)(d) (1981); the capital felony was committed for pecuniary gain,
§ 921.141(5)(f); it was especially heinous, atrocious, or cruel, §
921.141(5)(h); and Enmund was previously convicted of a felony involving
the use or threat of violence, § 921.141(5)(b). 399 So. 2d 1362, 1371-1372
(Fla. 1981). The court found that "none of the statutory mitigating
circumstances applied" to Enmund and that the aggravating circumstances
outweighed the mitigating circumstances. Id., at 1372. Enmund was
therefore sentenced to death on each of the murder counts. The
Florida Supreme Court affirmed Enmund's conviction and sentences. It found
that "[there] was no direct evidence at trial that Earl Enmund was present
at the back door of the Kersey home when the plan to rob the elderly
couple led to their being murdered." Id., at 1370. However, it rejected
petitioner's argument that at most he could be found guilty of
second-degree murder under Florida's felony-murder rule. The court
explained that the interaction of the "'felony murder rule and the law of
principals combine to make a felon generally responsible for the lethal
acts of his co-felon.'" Id., at 1369, quoting Adams v. State, 341 So. 2d
765, 768-769 (Fla. 1976), cert. denied, 434 U.S. 878
(1977). Although petitioner could be convicted of second-degree murder
only if he were an accessory before the fact rather than a principal, the
Florida Supreme Court reasoned:
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"[The] only evidence of the degree of his participation is the jury's
likely inference that he was the person in the car by the side of the road
near the scene of the crimes. The jury could have concluded that he was
there, a few hundred feet away, waiting to help the robbers escape with
the Kerseys' money. The evidence, therefore, was sufficient to find that
the appellant was a principal of the second degree, constructively present
aiding and abetting the commission of the crime of robbery. This
conclusion supports the verdicts of murder in the first degree on the
basis of the felony murder portion of section 782.04(1)(a)." 399 So. 2d,
at 1370.*fn2 The
State Supreme Court rejected two of the four statutory aggravating
circumstances found by the trial court. It held that the findings that the
murders were committed in the course of a robbery and that they were
committed for pecuniary gain referred to the same aspect of petitioner's
crime and must be treated as only one aggravating circumstance. Id., at
1373. In addition, the court held that "[the] recited circumstance, that
the murders were especially heinous, atrocious, and cruel, cannot be
approved." Ibid ., citing Armstrong v. State, 399 So. 2d 953 (Fla.
1981).*fn3 However, because there were two aggravating
circumstances and no mitigating circumstances, the death sentence was
affirmed. In so doing, the court expressly rejected Enmund's submission
that because the evidence did not establish that he intended to take life,
the death penalty was barred by the Eighth Amendment of the United States
Constitution. 399 So. 2d, at 1371.
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We granted Enmund's petition for certiorari, 454 U.S. 939 (1981), presenting the question whether death is a valid
penalty under the Eighth and Fourteenth Amendments for one who neither
took life, attempted to take life, nor intended to take life.*fn4 II
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As recounted above, the Florida Supreme Court held that the record
supported no more than the inference that Enmund was the person in the car
by the side of the road at the time of the killings, waiting to help the
robbers escape. This was enough under Florida law to make Enmund a
constructive aider and abettor and hence a principal in first-degree
murder upon whom the death penalty could be imposed. It was thus
irrelevant to Enmund's challenge to the death sentence that he did not
himself kill and was not present at the killings; also beside the point
was whether he intended that the Kerseys be killed or anticipated that
lethal force would or might be used if necessary to effectuate the robbery
or a safe escape. We have concluded that imposition of the death penalty
in these circumstances is inconsistent with the Eighth and Fourteenth
Amendments.
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A
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The Cruel and Unusual Punishments Clause of the Eighth Amendment is
directed, in part, "'against all punishments which by their excessive
length or severity are greatly disproportioned to the offenses charged.'"
Weems v. United States, 217 U.S. 349, 371 (1910),
quoting O'Neil v. Vermont, 144 U.S. 323, 339-340
(1892) (Field, J., dissenting). This Court most recently held a punishment
excessive in relation to the crime charged in Coker v. Georgia,
433 U.S. 584 (1977). There the plurality opinion
concluded that the imposition of the death penalty for the rape of an
adult woman "is grossly disproportionate and excessive punishment for the
crime of rape and is therefore forbidden by the Eighth Amendment as cruel
and unusual punishment." Id., at 592. In reaching this conclusion, it was
stressed that our judgment "should be informed by objective factors to the
maximum possible extent." Ibid. Accordingly, the Court looked to the
historical development of the punishment at issue, legislative judgments,
international opinion, and the sentencing decisions juries have made
before bringing its own
judgment to bear on the matter. We proceed to analyze the punishment at
issue in this case in a similar manner.
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B
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The Coker plurality observed that "[at] no time in the last 50 years
have a majority of the States authorized death as a punishment for rape."
Id., at 593. More importantly, in reenacting death penalty laws in order
to satisfy the criteria established in Furman v. Georgia, 408
U.S. 238 (1972), only three States provided the death penalty
for the rape of an adult woman in their revised statutes. 433
U.S., at 594. The plurality therefore concluded that "[the]
current judgment with respect to the death penalty for rape is not wholly
unanimous among state legislatures, but it obviously weighs very heavily
on the side of rejecting capital punishment as a suitable penalty for
raping an adult woman." Id., at 596 (footnote omitted).
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Thirty-six state and federal jurisdictions presently authorize the
death penalty. Of these, only eight jurisdictions authorize imposition of
the death penalty solely for participation in a robbery in which another
robber takes life.*fn5 Of the remaining 28 jurisdictions, in 4
felony murder is not a capital crime.*fn6 Eleven States require some culpable mental
state with
respect to the homicide as a prerequisite to conviction of a crime for
which the death penalty is authorized. Of these 11 States, 8 make knowing,
intentional, purposeful, or premeditated killing an element of capital
murder.*fn7 Three other States require proof of a
culpable mental state short of intent, such as recklessness or extreme
indifference to human life, before the death penalty may be imposed.*fn8 In these 11 States, therefore, the actors
in a felony murder are not subject to the death penalty without proof of
their mental state, proof which was not required with respect to Enmund either
under the trial court's instructions or under the law announced by the
Florida Supreme Court.
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Four additional jurisdictions do not permit a defendant such as Enmund
to be put to death. Of these, one State flatly prohibits capital
punishment in cases where the defendant did not actually commit murder.*fn9 Two jurisdictions preclude the death
penalty in cases such as this one where the defendant "was a principal in
the offense, which was committed by another, but his participation was
relatively minor, although not so minor as to constitute a defense to
prosecution."*fn10 One other State limits the death penalty
in felony murders to narrow circumstances not involved here.*fn11
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Nine of the remaining States deal with the imposition of the death
penalty for a vicarious felony murder in their capital sentencing
statutes. In each of these States, a defendant may not be executed solely
for participating in a felony in which a person was killed if the
defendant did not actually cause the victim's death. For a defendant to be
executed in these States, typically the statutory aggravating
circumstances which are present must outweigh mitigating factors. To be
sure, a vicarious felony murderer may be sentenced to death in these
jurisdictions absent an intent to kill if sufficient aggravating
circumstances are present. However, six of
these nine States make it a statutory mitigating circumstance that the
defendant was an accomplice in a capital felony committed by another
person and his participation was relatively minor.*fn12 By making minimal participation in a
capital felony committed by another person a mitigating circumstance,
these sentencing statutes reduce the likelihood that a person will be
executed for vicarious felony murder. The remaining three jurisdictions
exclude felony murder from their lists of aggravating circumstances that
will support a death sentence.*fn13 In each of these nine States, a
nontriggerman guilty of felony murder cannot be sentenced to death for the
felony murder absent aggravating circumstances above and beyond the felony
murder itself.
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Thus only a small minority of jurisdictions -- eight -- allow the
death penalty to be imposed solely because the defendant somehow
participated in a robbery in the course of which a murder was committed.
Even if the nine States are included where such a defendant could be
executed for an unintended felony murder if sufficient aggravating
circumstances are present to outweigh mitigating circumstances -- which
often include the defendant's minimal participation in the murder -- only
about a third of American jurisdictions would ever permit a defendant who
somehow participated in a robbery where a murder occurred to be sentenced
to die. Moreover, of the eight States which have enacted new death penalty
statutes since 1978, none authorize capital punishment in such
circumstances.*fn14 While the current legislative judgment with
respect to imposition of the death penalty where a defendant did not take
life, attempt to take it, or intend to take life is neither "wholly
unanimous among state legislatures," Coker v. Georgia, 433 U.S.,
at 596, nor as compelling as the legislative judgments
considered in Coker, it nevertheless weighs on the side of rejecting
capital punishment for the crime at issue.*fn15 C
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Society's rejection of the death penalty for accomplice liability in
felony murders is also indicated by the sentencing decisions that juries
have made. As we have previously observed, "'[the] jury . . . is a
significant and reliable objective index of contemporary values because it
is so directly involved.'" Coker v. Georgia, supra, at 596, quoting Gregg
v. Georgia, 428 U.S. 153, 181 (1976). The evidence is
overwhelming that American juries have repudiated imposition of the death
penalty for crimes such as petitioner's. First, according to the
petitioner, a search of all reported appellate court decisions since 1954
in cases where a defendant was executed for homicide shows that of the 362
executions, in 339 the person executed personally committed a homicidal
assault.*fn16 In 2 cases the person executed had
another person commit the homicide for him, and in 16 cases the facts were
not reported in sufficient detail to determine whether the person executed
committed the homicide.*fn17 The survey revealed only 6 cases out of
362 where a nontriggerman felony murderer was executed. All six executions
took place in .
By contrast, there were 72 executions for rape in this country between
1955 and this Court's decision in Coker v. Georgia in 1977.*fn18
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That juries have rejected the death penalty in cases such as this one
where the defendant did not commit the homicide, was not present when the
killing took place, and did not participate in a plot or scheme to murder
is also shown by petitioner's survey of the Nation's death-row
population.*fn19 As of October 1, 1981, there were 796
inmates under sentences of death for homicide. Of the 739 for whom
sufficient data are available, only 41 did not participate in the fatal
assault on the victim. Of the 40 among the 41 for whom sufficient
information was available, only 16 were not physically present when the
fatal assault was committed. These 16 prisoners included only 3, including
petitioner, who were sentenced to die absent a finding that they hired or
solicited someone else to kill the victim or participated in a scheme
designed to kill the victim. The figures for Florida are similar.*fn20 Forty-five felony murderers are currently
on death row. The Florida Supreme Court either found or affirmed a trial
court or jury finding that the defendant intended life to be taken in 36
cases. In eight cases the courts made no finding with respect to intent,
but the defendant was the triggerman in each case. In only one case --
Enmund's -- there was no finding of an intent to kill and the defendant
was not the triggerman.*fn21 The
State does not challenge this analysis of the Florida cases.
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The dissent criticizes these statistics on the ground that they do not
reveal the percentage of homicides that were charged as felony murders or
the percentage of cases where the State sought the death penalty for an
accomplice guilty of felony murder. Post, at 818-819. We doubt whether it
is possible to gather such information, and at any rate, it would be
relevant if prosecutors rarely sought the death penalty for accomplice
felony murder, for it would tend to indicate that prosecutors, who
represent society's interest in punishing crime, consider the death
penalty excessive for accomplice felony murder. The fact remains that we
are not aware of a single person convicted of felony murder over the past
quarter century who did not kill or attempt to kill, and did not intend
the death of the victim, who has been executed, and that only three
persons in that category are presently sentenced to die. Nor can these
figures be discounted by attributing to petitioner the argument that
"death is an unconstitutional penalty absent an intent to kill," post, at
819, and observing that the statistics are incomplete with respect to
intent. Petitioner's argument is that because he did not kill, attempt to
kill, and he did not intend to kill, the death penalty is disproportionate
as applied to him, and the statistics he cites are adequately tailored to
demonstrate that juries -- and perhaps prosecutors as well -- consider
death a disproportionate penalty for those who fall within his category.*fn22 III
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Although the judgments of legislatures, juries, and prosecutors weigh
heavily in the balance, it is for us ultimately to judge whether the
Eighth Amendment permits imposition of the death penalty on one such as
Enmund who aids and abets a felony in the course of which a murder is
committed by others but who does not himself kill, attempt to kill, or
intend that a killing take place or that lethal force will be employed. We
have concluded, along with most legislatures and juries, that it does
not.
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We have no doubt that robbery is a serious crime deserving serious
punishment. It is not, however, a crime "so grievous an affront to
humanity that the only adequate response may be the penalty of death."
Gregg v. Georgia, 428 U.S., at 184 (footnote
omitted). "[It] does not compare with murder, which does involve the
unjustified taking of human life. Although it may be accompanied by
another crime, [robbery] by definition does not include the death of or
even the serious injury to another person. The murderer kills; the
[robber], if no more than that, does not. Life is over for the victim of
the murderer; for the [robbery] victim, life . . . is not over and
normally is not beyond repair." Coker v. Georgia, 433 U.S., at
598 (footnote omitted). As was said of the crime of rape in
Coker, we have the abiding conviction that the death penalty, which is
"unique in its severity and irrevocability," Gregg v. Georgia, supra, at
187, is an excessive penalty for the robber who, as such, does not take
human life. Here
the robbers did commit murder; but they were subjected to the death
penalty only because they killed as well as robbed. The question before us
is not the disproportionality of death as a penalty for murder, but rather
the validity of capital punishment for Enmund's own conduct. The focus
must be on his culpability, not on that of those who committed the robbery
and shot the victims, for we insist on "individualized consideration as a
constitutional requirement in imposing the death sentence," Lockett v.
Ohio, 438 U.S. 586, 605 (1978) (footnote omitted),
which means that we must focus on "relevant facets of the character and
record of the individual offender." Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Enmund himself did not kill
or attempt to kill; and, as construed by the Florida Supreme Court, the
record before us does not warrant a finding that Enmund had any intention
of participating in or facilitating a murder. Yet under Florida law death
was an authorized penalty because Enmund aided and abetted a robbery in
the course of which murder was committed. It is fundamental that "causing
harm intentionally must be punished more severely than causing the same
harm unintentionally." H. Hart, Punishment and Responsibility 162 (1968).
Enmund did not kill or intend to kill and thus his culpability is plainly
different from that of the robbers who killed; yet the State treated them
alike and attributed to Enmund the culpability of those who killed the
Kerseys. This was impermissible under the Eighth Amendment.
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In Gregg v. Georgia the opinion announcing the judgment observed that
"[the] death penalty is said to serve two principal social purposes:
retribution and deterrence of capital crimes by prospective offenders." 428 U.S., at 183 (footnote omitted). Unless the death
penalty when applied to those in Enmund's position measurably contributes
to one or both of these goals, it "is nothing more than the purposeless
and needless imposition of pain and suffering," and hence an
unconstitutional punishment. Coker v. Georgia, supra, at 592. We are quite
unconvinced, however, that the threat that
the death penalty will be imposed for murder will measurably deter one who
does not kill and has no intention or purpose that life will be taken.
Instead, it seems likely that "capital punishment can serve as a deterrent
only when murder is the result of premeditation and deliberation," Fisher
v. United States, 328 U.S. 463, 484 (1946)
(Frankfurter, J., dissenting), for if a person does not intend that life
be taken or contemplate that lethal force will be employed by others, the
possibility that the death penalty will be imposed for vicarious felony
murder will not "enter into the cold calculus that precedes the decision
to act." Gregg v. Georgia, supra, at 186 (footnote omitted).
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It would be very different if the likelihood of a killing in the
course of a robbery were so substantial that one should share the blame
for the killing if he somehow participated in the felony. But competent
observers have concluded that there is no basis in experience for the
notion that death so frequently occurs in the course of a felony for which
killing is not an essential ingredient that the death penalty should be
considered as a justifiable deterrent to the felony itself. Model Penal
Code § 210.2, Comment, p. 38, and n. 96. This conclusion was based on
three comparisons of robbery statistics, each of which showed that only
about one-half of one percent of robberies resulted in homicide.*fn23 The most recent national crime
statistics strongly support this conclusion.*fn24 In addition to the evidence that killings
only rarely occur during robberies is the fact, already noted, that
however often death occurs in the course of a felony such as robbery, the
death penalty is rarely imposed on one only vicariously guilty of the
murder, a fact which further attenuates its possible utility as an
effective deterrence.
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As for retribution as a justification for executing Enmund, we think
this very much depends on the degree of Enmund's culpability -- what
Enmund's intentions, expectations, and actions were. American criminal law
has long considered a defendant's intention -- and therefore his moral
guilt -- to be critical to "the degree of [his] criminal culpability,"
Mullaney v. Wilbur, 421 U.S. 684, 698 (1975), and the
Court has found criminal penalties to be unconstitutionally excessive in
the absence of intentional wrongdoing. In Robinson v. California, 370 U.S. 660, 667 (1962), a statute making narcotics
addiction a crime, even though such addiction "is apparently an illness
which may be contracted innocently or involuntarily," was struck down
under the Eighth Amendment. Similarly, in Weems v. United States, the
Court invalidated a statute making it a crime for a public official to
make a false entry in a public record but not requiring the offender to
"[injure] any one by his act or [intend] to injure any one." 217
U.S., at 363. The Court employed a similar approach in Godfrey
v. Georgia, 446 U.S. 420, 433 (1980), reversing a
death sentence based on the existence of an aggravating circumstance
because the defendant's crime did not reflect "a consciousness materially
more 'depraved' than that of any person guilty of murder."
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For purposes of imposing the death penalty, Enmund's criminal
culpability must be limited to his participation in the robbery, and his
punishment must be tailored to his personal responsibility and moral
guilt. Putting Enmund to death to avenge two killings that he did not
commit and had no intention of committing or causing does not measurably
contribute to the retributive end of ensuring that the criminal gets his
just deserts. This is the judgment of most of the legislatures that have
recently addressed the matter, and we have no reason to disagree with that
judgment for purposes of construing and applying the Eighth
Amendment.
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IV
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Because the Florida Supreme Court affirmed the death penalty in this
case in the absence of proof that Enmund killed or attempted to kill, and
regardless of whether Enmund intended or contemplated that life would be
taken, we reverse the judgment upholding the death penalty and remand for
further proceedings not inconsistent with this opinion.
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So ordered.
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Disposition
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399 So. 2d 1362, reversed and remanded.
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JUSTICE BRENNAN, concurring.
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I join the Court's opinion. However, I adhere to my view that the
death penalty is in all circumstances cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 227 (1976) (dissenting
opinion).
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JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and
JUSTICE REHNQUIST join, dissenting.
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Today the Court holds that the Eighth Amendment prohibits a State from
executing a convicted felony murderer. I dissent from this holding not
only because I believe that it is not supported by the analysis in our
previous cases, but also because
today's holding interferes with state criteria for assessing legal guilt
by recasting intent as a matter of federal constitutional
law.
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I
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The evidence at trial showed that at approximately 7:30 a. m. on April
1, 1975, Sampson and Jeanette Armstrong approached the back door of Thomas
and Eunice Kersey's farmhouse on the pretext of obtaining water for their
overheated car.*fn1 When Thomas Kersey retrieved a water jug
to help the Armstrongs, Sampson Armstrong grabbed him, held a gun to him,
and told Jeanette Armstrong to take his wallet. Hearing her husband's
cries for help, Eunice Kersey came around the side of the house with a gun
and shot Jeanette Armstrong. Sampson Armstrong, and perhaps Jeanette
Armstrong, returned the fire, killing both of the Kerseys.*fn2 The Armstrongs dragged the bodies into the
kitchen, took Thomas Kersey's money, and fled to a nearby car, where the
petitioner, Earl Enmund, was waiting to help the Armstrongs escape. Record
1348-1351.*fn3
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Ida Jean Shaw*fn4 testified that on March 31 the petitioner
and the two Armstrongs were staying at her house. When she awoke on April
1, the day of the murders, the petitioner, Jeanette,
and Sampson, as well as Shaw's 1969 yellow Buick, were gone. Id., at
1185-1186. A little after eight o'clock, either the petitioner or Sampson
Armstrong entered the house and told her that Jeanette had been shot. Id.,
at 1187-1188. After learning that Jeanette had been shot during a robbery,
Shaw asked the petitioner "[why] he did it." Enmund answered that he had
decided to rob Thomas Kersey after he had seen Kersey's money a few weeks
earlier. Id., at 1205.*fn5 At the same time, Sampson Armstrong
volunteered that he had made sure that the Kerseys were dead. Id., at
1207-1208.
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Ida Jean Shaw also testified that, pursuant to the petitioner's and
Sampson Armstrong's instructions, she had disposed of a .22-caliber pistol
that she normally kept in her car, as well as a .38-caliber pistol
belonging to the Armstrongs. Id., at 1198-1202. The murder weapons were
never recovered.*fn6
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In his closing argument, the prosecutor did not argue that Earl Enmund
had killed the Kerseys. Instead, he maintained that the petitioner had
initiated and planned the armed
robbery, and was in the car during the killings. According to the
prosecutor, "Sampson Armstrong killed the old people." Id., at 1577.*fn7
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After deliberating for four hours, the jury found Sampson Armstrong
and the petitioner each guilty of two counts of first-degree murder*fn8 and one count of robbery.*fn9 The jury then
heard evidence pertaining to the appropriate sentence for the two
defendants, and recommended the death penalty for each defendant on each
of the murder counts.*fn10
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In its sentencing findings,*fn11 the trial court found four statutory
aggravating circumstances regarding the petitioner's involvement in the
murder: (1) the petitioner previously had been convicted of a felony
involving the use of violence (an armed robbery in 1957), Fla. Stat. §
921.141(5)(b) (1981); (2) the murders were committed during the course of
a robbery, § 921.141(5)(d); (3) the murders were committed for pecuniary
gain, § 921.141(5)(f); and (4) the murders were especially heinous,
atrocious, or cruel because the Kerseys had been shot in a prone position
in an effort to eliminate them as witnesses, § 921.141(5)(h). App. 30-31;
399 So. 2d 1362, 1371-1372 (Fla. 1981).*fn12 The
trial court also found that "none of the statutory mitigating
circumstances applied" to the petitioner. App. 32 (emphasis in original).
Most notably, the court concluded that the evidence clearly showed that
the petitioner was an accomplice to the capital felony and that his
participation had not been "relatively minor," but had been major in that
he "planned the capital felony and actively participated in an attempt to
avoid detection by disposing of the murder weapons." Ibid.; 399 So. 2d, at
1373. See Fla. Stat. § 921.141(6)(d) (1981).*fn13
|
| [54] |
Considering these factors, the trial court concluded that the
"aggravating circumstances of these capital felonies outweigh the
mitigating circumstances," and imposed the death penalty for each count of
murder. App. 32; 399 So. 2d, at 1373. The court sentenced the petitioner
to life imprisonment for the robbery. App. 28.*fn14 On
appeal, the Florida Supreme Court affirmed the petitioner's convictions
and sentences.*fn15 In challenging his convictions for
first-degree murder, the petitioner claimed that there was no evidence
that he had committed premeditated murder, or that he had been present
aiding and abetting the robbery when the Kerseys were shot. He argued that
since the jury properly could have concluded only that he was in the car
on the highway when the murders were committed, he could be found guilty
at most of second-degree murder under the State's felony-murder rule.*fn16
|
| [55] |
The court rejected this argument. Quoting from an earlier case, the
Florida Supreme Court held:
|
| [56] |
"'[An] individual who personally kills another during the perpetration
or attempt to perpetrate one of the enumerated felonies is guilty of first
degree murder. . . . Moreover, the felon's liability for first degree
murder extends to all of his co-felons who are personally present. As
perpetrators of the underlying felony, they are principals in the
homicide. In Florida, as in the majority of jurisdictions, the felony
murder rule and the law of principals combine to make a felon generally
responsible for the lethal acts of his co-felon. Only if the felon is an
accessory before the fact and not personally present does liability attach
under the second degree murder provision of the applicable statute in the
instant case.'" 399 So. 2d, at 1369 (quoting Adams v. State, 341 So. 2d
765, 768-769 (Fla. 1976) (footnote omitted), cert. denied, 434
U.S. 878 (1977)). Consequently,
the critical issue regarding liability was whether the petitioner's
conduct would make him a principal or merely an accessory before the fact
to the underlying robbery. Under Florida law at the time of the murders,
"if the accused was present aiding and abetting the commission or attempt
of one of the violent felonies listed in the first-degree murder statute,
he is equally guilty, with the actual perpetrator of the underlying
felony, of first-degree murder." 399 So. 2d, at 1370.
Moreover,
|
| [57] |
"'the presence of the aider and abettor need not have been actual, but
it is sufficient if he was constructively present, provided the aider,
pursuant to a previous understanding, is sufficiently near and so situated
as to abet or encourage, or to render assistance to, the actual
perpetrator in committing the felonious act or in escaping after its
commission.'" Ibid. (quoting Pope v. State, 84 Fla. 428, 446, 94 So. 865,
871 (1922)).
|
| [58] |
The court noted that there "was no direct evidence at trial that Earl
Enmund was present at the back door of the Kersey home when the plan to
rob the elderly couple led to their being murdered." 399 So. 2d, at
1370.*fn17 Instead,
|
| [59] |
"the only evidence of the degree of his participation is the jury's
likely inference that he was the person in the car by the side of the road
near the scene of the crimes. The jury could have concluded that he was
there, a few hundred feet away, waiting to help the robbers escape with
the Kerseys' money." Ibid.
|
| [60] |
This evidence, the court concluded, was sufficient to find the
petitioner to be a principal under state law, "constructively present
aiding and abetting the commission of the crime of robbery," and thus
guilty of first-degree murder. Ibid. Turning
to the trial court's written sentencing findings, the State Supreme Court
rejected two of the four aggravating circumstances. First, the court held
that two of the trial judge's findings -- that the murders were committed
both in the course of robbery and for pecuniary gain -- referred to the
same aspect of the petitioner's crime. Consequently, these facts supported
only one aggravating circumstance. Second, citing Armstrong v. State, 399
So. 2d 953 (Fla. 1981), the court held that "[the] recited circumstance,
that the murders were especially heinous, atrocious, and cruel, cannot be
approved." 399 So. 2d, at 1373.*fn18 The court affirmed the trial court's
findings that none of the statutory mitigating circumstances applied.
Ibid. Because one of those findings was that Enmund's participation in the
capital felony was not minor, due to his role in planning the robbery, the
State Supreme Court implicitly affirmed the finding that Enmund had
planned the robbery.
|
| [61] |
Regarding the petitioner's claim that imposition of the death penalty,
absent a showing that he intended to kill, would violate the Eighth
Amendment's ban on cruel and unusual punishments, the court simply stated
that the petitioner "offers us no binding legal authority that directly
supports this proposition, and we therefore reject it." Id., at 1371. II
|
| [62] |
Earl Enmund's claim in this Court is that the death sentence imposed
by the Florida trial court, and affirmed by the Florida Supreme Court, is
unconstitutionally disproportionate to the role he played in the robbery
and murders of the Kerseys.*fn19 In particular, he contends that because
he had no actual intent to kill the victims -- in effect, because his
behavior and intent were no more blameworthy than that of any robber --
capital punishment is too extreme a penalty.*fn20
|
| [63] |
In Gregg v. Georgia, 428 U.S. 153 (1976), a
majority of this Court concluded that the death penalty does not
invariably violate the Cruel and Unusual Punishments Clause of the Eighth
Amendment.*fn21 See id., at 187 (opinion of Stewart,
POWELL, and STEVENS, JJ.) ("[When] a life has been taken deliberately by
the offender, we cannot say that the punishment is invariably
disproportionate to the crime. It is an extreme sanction, suitable to the
most extreme of crimes") (footnote omitted); id., at 226 (opinion of
WHITE, J.) (rejecting the argument that "the death penalty, however
imposed and for whatever crime, is cruel and unusual punishment"); of
the death penalty, however, only marks the beginning of the inquiry, for
Earl Enmund was not convicted of murder as it is ordinarily envisioned --
a deliberate and premeditated, unlawful killing. Rather, through the
doctrine of accessorial liability, the petitioner has been convicted of
two murders that he did not specifically intend.*fn24 Thus, it is necessary to examine the
concept of proportionality as enunciated in this Court's cases to
determine whether the penalty imposed on Earl Enmund is unconstitutionally
disproportionate to his crimes.
|
| [64] |
A
|
| [65] |
The Eighth Amendment concept of proportionality was first fully
expressed in Weems v. United States, 217 U.S. 349
(1910). In that case, defendant Weems was sentenced to 15 years at hard
labor for falsifying a public document. After
remarking that "it is a precept of justice that punishment for crime
should be graduated and proportioned to offense," Id., at 367, and after
comparing Weems' punishment to the punishments for other crimes, the Court
concluded that the sentence was cruel and unusual. Id., at
381.
|
| [66] |
Not until two-thirds of a century later, in Coker v. Georgia, 433 U.S. 584 (1977), did the Court declare another
punishment to be unconstitutionally disproportionate to the crime. Writing
for himself and three other Members of the Court, JUSTICE WHITE concluded
that death is a disproportionate penalty for the crime of raping an adult
woman. Id., at 597.*fn25 In reaching this conclusion, the
plurality was careful to inform its judgment "by objective factors to the
maximum possible extent [by giving attention] to the public attitudes
concerning a particular sentence -- history and precedent, legislative
attitudes, and the response of juries reflected in their sentencing
decisions." Id., at 592. The plurality's resort to objective factors was
no doubt an effort to derive "from the evolving standards of decency that
mark the progress of a maturing society" the meaning of the requirement of
proportionality contained within the Eighth Amendment. Trop v. Dulles, 356 U.S. 86, 101 (1958) (opinion of Warren, C.
J.).
|
| [67] |
The plurality noted that within the previous 50 years a majority of
the States had never authorized death as a punishment for rape. More
significantly to the plurality, only 3 of the 35 States that immediately
reinstituted the death penalty following the Court's judgment in Furman v.
Georgia, 408 U.S. 238 (1972) (invalidating nearly all
state capital punishment statutes),
defined rape as a capital offense.*fn26 The plurality also considered "the
sentencing decisions that juries have made in the course of assessing
whether capital punishment is an appropriate penalty for the crime being
tried." 433 U.S., at 596. See Gregg v. Georgia, 428 U.S., at 181 (opinion of Stewart, POWELL, and
STEVENS, JJ.) ("The jury also is a significant and reliable objective
index of contemporary values because it is so directly involved"). From
the available data, the plurality concluded that in at least 90% of the
rape convictions since 1973, juries in Georgia had declined to impose the
death penalty. 433 U.S., at 597.
|
| [68] |
Thus, the conclusion reached in Coker rested in part on the Court's
observation that both legislatures and juries firmly rejected the penalty
of death for the crime of rape. See Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (opinion of Stewart, POWELL,
and STEVENS, JJ.) (concluding that the State's mandatory death penalty
statute violates the Eighth Amendment because the "two crucial indicators
of evolving standards of decency respecting the imposition of punishment
in our society -- jury determinations and legislative enactments -- both
point conclusively to the repudiation of automatic death
sentences").
|
| [69] |
In addition to ascertaining "contemporary standards," the plurality
opinion also considered qualitative factors bearing on the question
whether the death penalty was disproportionate, for "the Constitution
contemplates that in the end our own judgment will be brought to bear on
the question of the acceptability of the death penalty under the Eighth
Amendment." 433 U.S., at 597. The plurality
acknowledged that a rapist is almost as blameworthy as a murderer,
describing the
crime of rape as "highly reprehensible, both in a moral sense and in its
almost total contempt for the personal integrity and autonomy of the
female victim." Ibid. Despite the enormity of the crime of rape, however,
the Court concluded that the death penalty was "grossly out of proportion
to the severity of the crime," id., at 592, in part because the harm
caused by a rape "does not compare with murder, which does involve the
unjustified taking of human life." Id., at 598.
|
| [70] |
Coker teaches, therefore, that proportionality -- at least as regards
capital punishment -- not only requires an inquiry into contemporary
standards as expressed by legislators and jurors, but also involves the
notion that the magnitude of the punishment imposed must be related to the
degree of the harm inflicted on the victim, as well as to the degree of
the defendant's blameworthiness.*fn27 Moreover, because they turn on
considerations unique to each defendant's case, these latter factors
underlying the concept of proportionality are reflected in this Court's
conclusion in Lockett v. Ohio, 438 U.S. 586, 605
(1978), that "individualized consideration [is] a constitutional
requirement in imposing the death sentence" (opinion of BURGER, C. J.)
(footnote omitted). See id., at 613 (opinion of BLACKMUN, J.) ("the Ohio
judgment in this case improperly provided the death sentence for a
defendant who only aided and abetted a murder, without permitting any
consideration by the sentencing authority of the extent of her
involvement, or the degree of her mens rea, in the commission of the
homicide"). In
sum, in considering the petitioner's challenge, the Court should decide
not only whether the petitioner's sentence of death offends contemporary
standards as reflected in the responses of legislatures and juries, but
also whether it is disproportionate to the harm that the petitioner caused
and to the petitioner's involvement in the crime, as well as whether the
procedures under which the petitioner was sentenced satisfied the
constitutional requirement of individualized consideration set forth in
Lockett.
|
| [71] |
B
|
| [72] |
Following the analysis set forth in Coker, the petitioner examines the
historical development of the felony-murder rule, as well as contemporary
legislation and jury verdicts in capital cases, in an effort to show that
imposition of the death penalty on him would violate the Eighth Amendment.
This effort fails, however, for the available data do not show that
society has rejected conclusively the death penalty for felony
murderers.
|
| [73] |
As the petitioner acknowledges, the felony-murder doctrine, and its
corresponding capital penalty, originated hundreds of years ago,*fn28 and was a fixture of English common law
until 1957 when Parliament declared that an unintentional killing during a
felony would be classified as manslaughter.*fn29 The common-law rule was transplanted to
the American Colonies, and
its use continued largely unabated into the 20th century, although
legislative reforms often restricted capital felony murder to enumerated
violent felonies.*fn30
|
| [74] |
The petitioner discounts the weight of this historical precedent by
arguing that jurors and judges widely resisted the application of capital
punishment by acquitting defendants in felony-murder cases or by
convicting them of non-capital manslaughter.*fn31 The force of the petitioner's argument is
speculative at best, however, for it is unclear what fraction of the jury
nullification in this country resulted from dissatisfaction with the
capital felony-murder rule. Much of it, surely, was a reaction to the
mandatory death penalty, and the failure of the common law and early state
statutes to classify murder by degree. In fact, it was in response to
juror attitudes toward capital punishment that most jurisdictions by the
early part of this century replaced their mandatory death penalty statutes
with statutes allowing juries the discretion to decide whether to impose
or to recommend the death penalty. See Woodson v. North Carolina, 428 U.S., at 291-292 (opinion of Stewart, POWELL, and
STEVENS, JJ.).*fn32 Thus, it simply is not possible to
conclude that historically this
country conclusively has rejected capital punishment for homicides
committed during the course of a felony.
|
| [75] |
The petitioner and the Court turn to jury verdicts in an effort to
show that, by present standards at least, capital punishment is grossly
out of proportion to the crimes that the petitioner committed. Surveying
all reported appellate court opinions since 1954 involving executions, the
petitioner has found that of the 362 individuals executed for homicide,
339 personally committed the homicidal assault, and two others each had
another person commit the homicide on his behalf. Only six persons
executed were "non-triggermen."*fn33 A similar trend can be seen in the
petitioner's survey of the current death row population.*fn34 Of the 739 prisoners for whom sufficient
data are available, only 40 did not participate in the homicidal assault,
and of those, only 3 (including the petitioner) were sentenced to death
absent a finding that they had collaborated with the killer in a specific
plan to kill. Brief for Petitioner 35-36. See also App. to Reply Brief for
Petitioner (showing that of the 45 felony murderers currently on death row
in Florida, 36 were found by the State Supreme Court or a trial court to
have had the intent to kill; in 8 cases, the state courts made no finding,
but the defendant was the triggerman; and in 1, the petitioner's case, the
defendant was not the triggerman, and there was no finding of intent to
kill).
|
| [76] |
Impressive as these statistics are at first glance, they cannot be
accepted uncritically. So stated, the data do not reveal the murder or
fraction of homicides that were charged as felony murders, or the number
or fraction of cases in which the State sought the death penalty for an
accomplice guilty of felony
murder. Consequently, we cannot know the fraction of cases in which juries
rejected the death penalty for accomplice felony murder. Moreover, as
JUSTICE BLACKMUN pointed out in his concurring opinion in Lockett v. Ohio,
438 U.S., at 615, n. 2, many of these data classify
defendants by whether they "personally committed a homicidal assault," and
do not show the fraction of capital defendants who were shown to have an
intent to kill. While the petitioner relies on the fact that he did not
pull the trigger, his principal argument is, and must be, that death is an
unconstitutional penalty absent an intent to kill, for otherwise
defendants who hire others to kill would escape the death penalty. See n.
20, supra. Thus, the data he presents are not entirely relevant. Even
accepting the petitioner's facts as meaningful, they may only reflect that
sentencers are especially cautious in imposing the death penalty, and
reserve that punishment for those defendants who are sufficiently involved
in the homicide, whether or not there was specific intent to
kill.
|
| [77] |
Finally, as the petitioner acknowledges, the jury verdict statistics
cannot be viewed in isolation from state death penalty legislation. The
petitioner and the Court therefore review recent legislation in order to
support the conclusion that society has rejected capital felony murder. Of
the 35 States that presently have a death penalty, however, fully 31
authorize a sentencer to impose a death sentence for a death that occurs
during the course of a robbery.*fn35 The States are not uniform in delimiting
the circumstances under which the death
penalty may be imposed for felony murder, but each state statute can be
classified as one of three types. The first category, containing 20
statutes, includes those States that permit imposition of the death
penalty for felony murder even though the defendant did not commit the
homicidal act, and even though he had no actual intent to kill.*fn36 Three additional States,
while requiring some finding of intent, do not require the intent to kill
that the petitioner believes is constitutionally mandated before the death
sentence may be imposed.*fn37 The second category, containing seven
statutes, includes those States that authorize the death penalty only if
the defendant had the specific intent (or some rough equivalent) to kill
the victim.*fn38 The third class of statutes, from only
three States, restricts application of the death penalty to those felony
murderers who actually commit the homicide.*fn39
|
| [78] |
The Court's curious method of counting the States that authorize
imposition of the death penalty for felony murder cannot hide the fact
that 23 States permit a sentencer to impose the death penalty even though
the felony murderer has neither killed nor intended to kill his victim.
While the Court acknowledges that eight state statutes follow the Florida
death penalty scheme, see ante, at 789, n. 5, it also concedes that 15
other statutes permit imposition of the death penalty where the defendant
neither intended to kill or actually killed the victims. See ante, at 790,
n. 8 (Arkansas, Delaware, and Kentucky); ante, at 793-794, n. 15 (New
Mexico); ante, at 791, n. 10 (Colorado); ante, at 791, n. 11 (Vermont);
ante, at
792, n. 12 (Arizona, Connecticut, Indiana, Montana, Nebraska, and North
Carolina); ante, at 792, n. 13 (Idaho, Oklahoma, and South Dakota). Not
all of the statutes list the same aggravating circumstances. Nevertheless,
the question before the Court is not whether a particular species of death
penalty statute is unconstitutional, but whether a scheme that permits
imposition of the death penalty, absent a finding that the defendant
either killed or intended to kill the victims, is unconstitutional. In
short, the Court's peculiar statutory analysis cannot withstand closer
scrutiny.
|
| [79] |
Thus, in nearly half of the States, and in two-thirds of the States
that permit the death penalty for murder, a defendant who neither killed
the victim nor specifically intended that the victim die may be sentenced
to death for his participation in the robbery-murder. Far from "[weighing]
very heavily on the side of rejecting capital punishment as a suitable
penalty for" felony murder, Coker v. Georgia, 443 U.S., at 596, these legislative judgments indicate that our "evolving
standards of decency" still embrace capital punishment for this crime. For
this reason, I conclude that the petitioner has failed to meet the
standards in Coker and Woodson that the "two crucial
indicators of evolving standards of decency . . . -- jury determinations
and legislative enactments -- both point conclusively to the repudiation"
of capital punishment for felony murder. 428 U.S., at 293 (emphasis added). In short, the death penalty for felony
murder does not fall short of our national "standards of
decency."
|
| [80] |
C
|
| [81] |
As I noted earlier, the Eighth Amendment concept of proportionality
involves more than merely a measurement of contemporary standards of
decency. It requires in addition that the penalty imposed in a capital
case be proportional to the harm caused and the defendant's
blameworthiness. Critical to the holding in Coker, for example, was that
"in terms of moral depravity and of the injury to the person and to
the public, [rape] does not compare with murder, which . . . [involves]
the unjustified taking of human life." 433 U.S., at 598.
|
| [82] |
Although the Court disingenuously seeks to characterize Enmund as only
a "robber," ante, at 797, it cannot be disputed that he is responsible,
along with Sampson and Jeanette Armstrong, for the murders of the Kerseys.
There is no dispute that their lives were unjustifiably taken, and that
the petitioner, as one who aided and abetted the armed robbery, is legally
liable for their deaths.*fn40 Quite unlike the defendant in Coker, the
petitioner cannot claim that the penalty imposed is "grossly out of
proportion" to the harm for which he admittedly is at least partly
responsible.
|
| [83] |
The Court's holding today is especially disturbing because it makes
intent a matter of federal constitutional law, requiring this Court both
to review highly subjective definitional problems customarily left to
state criminal law and to develop an Eighth Amendment meaning of intent.
As JUSTICE BLACKMUN pointed out in his concurring opinion in Lockett, the
Court's holding substantially "[interferes] with the States' individual
statutory categories for assessing legal guilt."
438 U.S., at 616.*fn41 See also id., at 635-636 (opinion of
REHNQUIST, J.) (rejecting the idea that intent to kill must be proved
before the State can impose the death penalty). Although the Court's
opinion suggests that intent can be ascertained as if it were some
historical fact, in fact it is a legal concept, not easily defined. Thus,
while proportionality requires a nexus between the punishment imposed and
the defendant's blameworthiness, the Court fails to explain why the Eighth
Amendment concept of proportionality requires rejection of standards of
blameworthiness based on other levels of intent, such as, for example, the
intent to commit an armed robbery coupled with the knowledge that armed
robberies involve substantial risk of death or serious injury to other
persons. Moreover, the intent-to-kill requirement is crudely crafted; it
fails to take into account the complex picture of the defendant's
knowledge of his accomplice's intent and whether he was armed, the
defendant's contribution to the planning and success of the crime, and the
defendant's actual participation during the commission of the crime. Under
the circumstances, the determination of the degree of blameworthiness is
best left to the sentencer, who can sift through the facts unique to each
case. Consequently, while the type of mens rea of the defendant must be
considered carefully in assessing the proper penalty, it is not so
critical a factor in determining blameworthiness as to require a finding
of intent to kill in order to impose the death penalty for felony
murder.
|
| [84] |
In sum, the petitioner and the Court have failed to show that
contemporary standards, as reflected in both jury determinations and
legislative enactments, preclude imposition of the
death penalty for accomplice felony murder. Moreover, examination of the
qualitative factors underlying the concept of proportionality do not show
that the death penalty is disproportionate as applied to Earl Enmund. In
contrast to the crime in Coker, the petitioner's crime involves the very
type of harm that this Court has held justifies the death penalty.
Finally, because of the unique and complex mixture of facts involving a
defendant's actions, knowledge, motives, and participation during the
commission of a felony murder, I believe that the factfinder is best able
to assess the defendant's blameworthiness. Accordingly, I conclude that
the death penalty is not disproportionate to the crime of felony murder,
even though the defendant did not actually kill or intend to kill his
victims.*fn42 III
|
| [85] |
Although I conclude that the death penalty is not disproportionate to
the crime of felony murder, I believe that, in light of the State Supreme
Court's rejection of critical factual findings, our previous opinions
require a remand for a new sentencing hearing.*fn43 Repeatedly, this Court has emphasized
that capital sentencing decisions must focus "on the circumstances of each
individual homicide and individual defendant." Proffitt v. Florida, 428 U.S. 242, 258 (1976) (opinion of Stewart, POWELL,
and STEVENS, JJ.). In striking down the mandatory capital punishment
statute in Woodson v. North Carolina, 428 U.S., at 304, a plurality of the Court
wrote:
|
| [86] |
" A process that accords no significance to relevant facets of the
character and record of the individual offender or the circumstances of
the particular offense excludes from consideration in fixing the ultimate
punishment of death the possibility of compassionate or mitigating factors
stemming from the diverse frailties of humankind. It treats all persons
convicted of a designated offense not as uniquely individual human beings,
but as members of a faceless, undifferentiated mass to be subjected to the
blind infliction of the penalty of death.
|
| [87] |
". . . [We] believe that in capital cases the fundamental respect for
humanity underlying the Eighth Amendment requires consideration of the
character and record of the individual offender and the circumstances of
the particular offense as a constitutionally indispensable part of the
process of inflicting the penalty of death."
|
| [88] |
In Lockett v. Ohio, 438 U.S., at 605, a plurality
of this Court concluded:
|
| [89] |
"Given that the imposition of death by public authority is so
profoundly different from all other penalties, we cannot avoid
the conclusion that an individualized decision is essential in capital
cases. The need for treating each defendant in a capital case with that
degree of respect due the uniqueness of the individual is far more
important than in non-capital cases. . . . The non-availability of
corrective or modifying mechanisms with respect to an executed capital
sentence underscores the need for individualized consideration as a
constitutional requirement in imposing the death sentence" (footnote
omitted).
|
| [90] |
Accordingly, "the sentencer, in all but the rarest kind of capital
case, [may] not be precluded from considering, as a mitigating factor, any
aspect of the defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less
than death" (footnotes omitted). Id., at 604. See id., at 613 (opinion of
BLACKMUN, J.) (concluding that the Ohio capital sentencing statute is
unconstitutional because it "provided the death sentence for a defendant
who only aided and abetted a murder, without permitting any consideration
by the sentencing authority of the extent of her involvement, or the
degree of her mens rea, in the commission of the homicide"); Green v.
Georgia, 442 U.S. 95, 97 (1979) (per curiam) (holding
that the exclusion of evidence, from the capital sentencing proceeding,
that the petitioner was not present when the victim was killed violated
due process because "[the] excluded testimony was highly relevant to a
critical issue in the punishment phase of the trial"); Eddings v.
Oklahoma, 455 U.S. 104 (1982) (adopting the
plurality's rule in Lockett ). Thus, in deciding whether or not to impose
capital punishment on a felony murderer, a sentencer must consider any
relevant evidence or arguments that the death penalty is inappropriate for
a particular defendant because of his relative lack of mens rea and his
peripheral participation in the murder. Because of the peculiar
circumstances of this case, I conclude that the trial court did not give
sufficient consideration to the petitioner's role in the crimes, and thus
did not consider the mitigating circumstances
proffered by the defendant at his sentencing hearing.*fn44
|
| [91] |
In sentencing the petitioner, the trial court found four statutory
aggravating circumstances: the petitioner had been convicted previously of
a violent felony; the murders had been committed during the course of a
robbery; the murders had been committed for pecuniary gain; and the
murders were especially heinous, atrocious, or cruel. In its factual
findings, the trial court stated that the "armed robbery . . . was planned
ahead of time by the defendant Enmund," App. 30, and that he had shot each
of the victims while they lay prone in order to eliminate them as
witnesses. Id., at 30-31. The court expressly found that "none of the
statutory mitigating circumstances applied" to the petitioner. Id., at 32
(emphasis in original). Among other findings, the court rejected Enmund's
claim that his participation in the murders had been "relatively minor,"
and found instead that "his participation in the capital felony was major.
The defendant Enmund planned the capital felony and actively participated
in an attempt to avoid detection by disposing of the murder weapons."
Ibid.
|
| [92] |
The Florida Supreme Court rejected these findings in part. The court
noted that there "was no direct evidence at trial that Earl Enmund was
present at the back door of the Kersey home when the plan to rob the
elderly couple led to their being murdered." 399 So. 2d, at 1370.
Rather,
|
| [93] |
"the only evidence of the degree of his participation is the jury's
likely inference that he was the person in the car by the side of the road
near the scene of the crimes. The jury could have concluded that he was
there, a few hundred feet away, waiting to help the robbers escape with
the Kerseys' money." Ibid. Consequently,
the court expressly rejected the trial court's finding that Enmund
personally had committed the homicides. Reviewing the aggravating
circumstances, the Supreme Court consolidated two of them, and rejected
the trial court's conclusion that the murders had been "heinous,
atrocious, or cruel," since the evidence showed that the Armstrongs had
killed the Kerseys in a gun battle arising from Mrs. Kersey's armed
resistance, and not that the petitioner had killed them in an effort to
eliminate them as witnesses. See Armstrong v. State, 399 So. 2d, at
963.
|
| [94] |
Although the state statutory procedures did not prevent the trial
judge from considering any mitigating circumstances,*fn45 the trial judge's view of the facts, in
part rejected by the State Supreme Court, effectively prevented such
consideration. In his erroneous belief that the petitioner had shot both
of the victims while they lay in a prone position in order to eliminate
them as witnesses, the trial judge necessarily rejected the only argument
offered in mitigation -- that the petitioner's role in the capital
felonies was minor, undeserving of the death penalty, because the
petitioner was in the car when the fatal shots were fired. This
fundamental misunderstanding of the petitioner's role in the crimes
prevented the trial court from considering the "circumstances of the
particular offense" in imposing sentence. Woodson v. North Carolina, 428 U.S., at 304. Moreover, this error was not so
insignificant that we can be sure its effect on the sentencing
judge's decision was negligible.*fn46 Accordingly, I would vacate the decision
below insofar as it affirms the death sentence, and remand the case for a
new sentencing hearing.
|
| [95] |
Counsel FOOTNOTES
|
| [96] |
* Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calio filed a
brief for the Washington Legal Foundation as amicus curiae urging
affirmance.
|
| [97] |
Robert K. Corbin, Attorney General of Arizona, William J. Schaffer
III, and Bruce Ferg, Assistant Attorneys General, filed a brief for the
States of Arizona et al. as amici curiae.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [98] |
*fn1 Jeanette Armstrong's trial was severed and
she was convicted of two counts of second-degree murder and one count of
robbery and sentenced to three consecutive life sentences. 399 So. 2d
1362, 1371 (Fla. 1981).
|
| [99] |
*fn2 The Florida Supreme Court's understanding
of the evidence differed sharply from that of the trial court with respect
to the degree of Enmund's participation. In its sentencing findings, the
trial court concluded that Enmund was a major participant in the robbery
because he planned the robbery in advance and himself shot the Kerseys.
399 So. 2d, at 1372. Both of these findings, as we understand it, were
rejected by the Florida Supreme Court's holding that the only supportable
inference with respect to Enmund's participation was that he drove the
getaway car. The dissent, while conceding that this holding negated the
finding that Enmund was one of the triggermen, argues that the trial
court's finding that Enmund planned the robbery was implicitly affirmed.
Post, at 809. As we have said, we disagree with that view. In any event,
the question is irrelevant to the constitutional issue before us, since
the Florida Supreme Court held that driving the escape car was enough to
warrant conviction and the death penalty, whether or not Enmund intended
that life be taken or anticipated that lethal force would be
used.
|
| [100] |
*fn3 In Armstrong the Florida Supreme Court
rejected the trial court's conclusion that the Kerseys had been killed in
order to eliminate them as witnesses, and stated that according to the
only direct account of the events, "the shootings were indeed spontaneous
and were precipitated by the armed resistance of Mrs. Kersey." 399 So. 2d,
at 963.
|
| [101] |
*fn4 The petitioner argues a second question:
whether the degree of Enmund's participation in the killings was given the
consideration required by the Eighth and Fourteenth Amendments. We need
not deal with this question.
|
| [102] |
*fn5 Cal. Penal Code Ann. §§ 189, 190.2(a)(17)
(West Supp. 1982); Fla. Stat. §§ 782.04(1)(a), 775.082(1), 921.141(5)(d)
(1981); Ga. Code §§ 26-1101(b), (c), 27-2534.1(b)(2) (1978); Miss. Code
Ann. §§ 97-3-19(2)(e), 99-19-101(5)(d) (Supp. 1981); Nev. Rev. Stat. §§
200.030(1)(b), 200.030(4), 200.033(4) (1981); S. C. Code §§ 16-3-10,
16-3-20(C)(a)(1) (1976 and Supp. 1981); Tenn. Code Ann. §§ 39-2402(a),
39-2404(i)(7) (Supp. 1981); Wyo. Stat. §§ 6-4-101, 6-4-102(h)(iv)
(1977).
|
| [103] |
*fn6 Mo. Rev. Stat. §§ 565.001, 565.003,
565.008(2) (1978) (death penalty may be imposed only for capital murder;
felony murder is first-degree murder); N. H. Rev. Stat. Ann. §§ 630:1,
630:1(III), 630:1-a(I)(b)(2) (1974 and Supp. 1981) (capital murder
includes only killing a law enforcement officer, killing during a
kidnaping, and murder for hire); 18 Pa. Cons. Stat. §§ 2502(a), (b), 1102
(1980) (death penalty may be imposed only for first-degree murder; felony
murder is second-degree murder); Wash. Rev. Code §§ 9A.32.030, 10.95.020
(1981) (death penalty may be imposed only for premeditated
killing).
|
| [104] |
*fn7 Ala. Code §§ 13A-2-23, 13A-5-40(a)(2),
13A-6-2(a)(1) (1977 and Supp. 1982) (to be found guilty of capital murder,
accomplice must have had "intent to promote or assist the commission of
the offense" and murder must be intentional); Ill. Rev. Stat., ch. 38,
paras. 9-1(a)(3), 9-1(b)(6) (1979) (capital crime only if defendant killed
intentionally or with knowledge that his actions "created a strong
probability of death or great bodily harm"); La. Rev. Stat. Ann. §
14:30(1) (West Supp. 1982) ("specific intent to kill"); N. M. Stat. Ann.
§§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp. 1981) (felony murder is a
capital crime but death penalty may not be imposed absent intent to kill
unless victim was a peace officer); Ohio Rev. Code Ann. §§ 2903.01(B),
(C), (D), 2929.02(A), 2929.04(A)(7) (1982) (accomplice not guilty of
capital murder unless he intended to kill); Tex. Penal Code Ann. §§
19.02(a), 19.03(a)(2) (1974) ("intentionally commits the murder in the
course of [a felony]"); Utah Code Ann. § 76-5-202(1) (1978)
("intentionally or knowingly causes the death of another"); Va. Code §
18.2-31(d) (1982) ("willful, deliberate and premeditated killing of any
person in the commission of robbery while armed with a deadly
weapon").
|
| [105] |
*fn8 Ark. Stat. Ann. § 41-1501(1)(a) (1977)
("extreme indifference to . . . life"); see also § 41-1501, Commentary
("an inadvertent killing in the course of a felony will not . . . support
. . . a conviction entailing punishment by death"); Del. Code Ann., Tit.
11, §§ 636(a)(2), (6) (1979) ("recklessly" or "with criminal negligence"
causes death during the commission of a felony); Ky. Rev. Stat. §
507.020(1)(b) (Supp. 1980) (defendant must manifest "extreme indifference
to human life" and "wantonly [engage] in conduct which creates a grave
risk of death . . . and thereby causes . . . death"); see also Commentary
following Criminal Law of Kentucky Annotated, Penal Code § 507.020, p. 677
(1978) (each accomplice's "participation in [the] felony" must
"[constitute] wantonness manifesting extreme indifference to human
life").
|
| [106] |
*fn9 Md. Code Ann., Art. 27, §§ 410, 412(b),
413(d)(10), 413(e)(1) (1982) (except in cases of murder for hire, only
principal in the first degree subject to the death penalty). In addition,
two jurisdictions already accounted for in n. 7, supra, also preclude the
death penalty where the defendant did not commit the murder. Ill. Rev.
Stat., ch. 38, paras. 9-1(a)(3), 9-1(b)(6) (1979) (defendant must actually
kill victim); Va. Code §§ 18.2-31(d), 18.2-10(a), 18.2-18 (1982) (except
in cases of murder for hire, only principal in the first degree may be
tried for capital murder).
|
| [107] |
*fn10 Colo. Rev. Stat. § 16-11-103(5)(d)
(1978); 49 U. S. C. § 1473(c)(6)(D) (same).
|
| [108] |
*fn11 Vt. Stat. Ann., Tit. 13, §§ 2303(b), (c)
(Supp. 1981) (capital murder reserved for offenders who commit a second
unrelated murder or murder of a correctional officer).
|
| [109] |
*fn12 Ariz. Rev. Stat. Ann. § 13-703(G)(3)
(Supp. 1981-1982) ("relatively minor" participation); Conn. Gen. Stat. §
53a-46a(f)(4) (Supp. 1982) (same); Ind. Code § 35-50-2-9(c)(4) (Supp.
1981) (same); Mont. Code Ann. § 46-18-304(6) (1981) (same); Neb. Rev.
Stat. § 29-2523(2)(e) (1979) (same); N. C. Gen. Stat. § 15A-2000(f)(4)
(Supp. 1981) (same).
|
| [110] |
*fn13 Idaho Code § 19-2515(f) (1979); Okla.
Stat., Tit. 21, § 701.12 (1981); S. D. Comp. Laws Ann. § 23A-27A-1 (Supp.
1981).
|
| [111] |
*fn14 See the Ala., Colo., Conn., Md., Ohio,
Pa., S. D., and Wash. statutes cited in nn. 5-7, 9, 10, 12, and 13,
supra.
|
| [112] |
*fn15 The dissent characterizes the state
statutes somewhat differently. It begins by noting that 31 States
"authorize a sentencer to impose a death sentence for a death that occurs
during the course of a robbery." Post, at 819. That is not relevant to
this case, however. Rather, at issue is the number of States which
authorize the death penalty where the defendant did not kill, attempt to
kill, or intend to kill. The dissent divides the statutes into three
categories. Its first category of 20 statutes include 8 about which there
is no disagreement -- Cal., Fla., Ga., Miss., Nev., S. C., Tenn., and Wyo.
In 11 other States listed by the dissent -- Ariz., Colo., Conn., Idaho,
Ind., Mont., Neb., N. M., N. C., Okla., and S. D. -- the dissent looks
solely at the provisions defining the crime of capital murder. Colorado's
capital sentencing statute makes a defendant's minimal participation in a
murder an absolute defense to imposition of the death penalty. See n. 10,
supra. Contrary to the dissent's claim that this provision would have been
of no help to petitioner, see post, at 820, n. 36, if the case is judged
on the basis of the Florida Supreme Court's findings, see n. 2, supra,
Colorado law may well have barred imposition of the death penalty in this
case. Similarly, the Ariz., Conn., Ind., Mont., Neb., and N. C. capital
sentencing statutes do not permit capital punishment solely for vicarious
felony murder and reduce the likelihood that the death penalty will be
imposed on a vicarious felony murderer, even where aggravating
circumstances are present, by making a defendant's minimal participation
in the homicide a mitigating circumstance. See n. 12, supra. Three other
States -- Idaho, Okla., and S. D. -- allow a defendant who does not intend
to kill or actually kill to be executed only where other aggravating
circumstances are present, and in those States the felony murder itself
cannot serve as an aggravating circumstance. See n. 13, supra. New
Mexico's capital sentencing statute requires the jury to find at least one
statutory aggravating circumstance before the death penalty may be
imposed, and in addition aggravating circumstances must outweigh
mitigating circumstances. N.M. Stat. Ann. §§ 31-20A-4(C)(1) and (2) (Supp.
1981). The statute lists seven statutory aggravating circumstances, six of
which require an intent to kill. §§ 31-20A-5(B)-(G). The only aggravating
circumstance which does not include an intent element is not applicable
here, for it requires that the victim must be "a peace officer who was
acting in the lawful discharge of an official duty when he was murdered."
§ 31-20A-5(A). The remaining State, Vermont, limits the death penalty to
narrow circumstances not present here. See n. 11, supra.
There is no disagreement that three States require a culpable mental
state short of intent before a nontriggerman may be put to death, compare
n. 8, supra, with post, at 821, n. 37, a mental state which Enmund was not
proved to possess. Similarly, the dissent's second category of seven
States which authorize the death penalty only if the defendant had
specific intent to kill the victim differs from our group of
specific-intent States only because we include New Mexico in that group.
Compare n. 7, supra, with post, at 821-822, n. 38. Finally, there is no
disagreement that three States restrict application of the death penalty
to felony murderers who actually kill. Compare n. 9, supra, with post, at
822, n. 39.
|
| [113] |
*fn16 See App. D to Brief for
Petitioner.
|
| [114] |
*fn17 There is no reason to believe that this
group of 16 contains a higher proportion of nontriggermen than does the
rest of the defendants studied.
|
| [115] |
*fn18 See NAACP Legal Defense and Educational
Fund, Inc., Death Row U. S. A. 1, n. * (Oct. 20, 1981).
|
| [116] |
*fn19 See App. E to Brief for Petitioner; NAACP
Legal Defense and Educational Fund, Inc., Death Row U. S. A. (Oct. 20,
1981).
|
| [117] |
*fn20 See App. to Reply Brief for Petitioner
A-1 -- A-7.
|
| [118] |
*fn21 These statistics concerning the number of
vicarious felony murderers who have been executed and the number of them
on death row are consistent with the findings of a study of 111 cases in
which the defendant was found guilty of a capital crime and hence could
have received the death penalty. Kalven & Zeisel, The American Jury
and the Death Penalty, 33 U. Chi. L. Rev. 769 (1966). The authors found
that juries rebel "at imposing the death penalty for the vicarious
criminal responsibility of the defendant," id., at 776, to the extent that
felony murder and accomplice factors accounted for more jury decisions not
to impose the death penalty when the trial judge decided to impose the
death penalty than any other factor. Id., at 777. The authors had
anticipated that "because of the rigidity of the felony murder rule, the
jury's sense of equity would produce a broad area of disagreement." Id.,
at 776, n. 10. However, they found that "disagreement over the rule
emerges only at the level of the death penalty." Ibid.
|
| [119] |
*fn22 "[The] climate of international opinion
concerning the acceptability of a particular punishment" is an additional
consideration which is "not irrelevant." Coker v. Georgia, 433
U.S. 584, 596, n. 10 (1977). It is thus worth noting that the
doctrine of felony murder has been abolished in England and India,
severely restricted in Canada and a number of other Commonwealth
countries, and is unknown in continental Europe. ALI, Model Penal Code §
210.2, pp. 39-40 (Off. Draft and Revised Comments 1980) (hereafter Model
Penal Code). It is also relevant that death sentences have not
infrequently been commuted to terms of imprisonment on the grounds of the
defendant's lack of premeditation and limited participation in the
homicidal act. See Wolfgang, Kelly, & Nolde, Comparison of the
Executed and Commuted Among Admissions to Death Row, 53 J. Crim. L. C.
& P. S. 301, 310 (1962).
|
| [120] |
*fn23 The statistics relied upon by the
American Law Institute may be summarized as follows:
Robberies Date & No. of Accompanied Location Robberies by Homicide
% Cook County, Ill. 14,392 (est.) 71 .49 1926-1927 Philadelphia, Pa.
16,432 38 .59 1948-1952 New Jersey 16,273 66 .41 1975 Model Penal Code §
210.2, Comment, p. 38, n. 96.
|
| [121] |
*fn24 An estimated total of 548,809 robberies
occurred in the United States in 1980. U.S. Dept. of Justice, Federal
Bureau of Investigation, Uniform Crime Reports 17 (1981). Approximately
2,361 persons were murdered in the United States in 1980 in connection
with robberies, id., at 13, and thus only about 0.43% of robberies in the
United States in 1980 resulted in homicide. See also Cook, The Effect of
Gun Availability on Robbery and Robbery Murder, in 3 R. Haveman & B.
Zellner, Policy Studies Review Annual 743, 747 (1980) (0.48% of all
robberies result in murder).
|
| |
|
| |
Dissent Footnotes
|
| |
|
| [122] |
*fn1 Much of the evidence concerning these
crimes came from J. B. Neal, to whom Sampson Armstrong made numerous
admissions on the day of the murders. See Record 1344-1365.
|
| [123] |
*fn2 J. B. Neal testified that Armstrong had
told him that two guns were involved; Jeanette had one and Sampson had the
other. Id., at 1354.
|
| [124] |
*fn3 An autopsy revealed that Mr. Kersey had
been shot twice, once with a .38-caliber bullet, and once with a
.22-caliber bullet. Mrs. Kersey had been shot six times; of the bullets
that could be identified, two were fired from a .38-caliber gun, and one
from a .22-caliber gun. According to a firearms expert, the .22-caliber
bullets were fired from the same gun, and the .38-caliber bullets were
fired from the same gun. See 399 So. 2d 1362, 1364 (Fla.
1981).
|
| [125] |
*fn4 Ida Jean Shaw was the petitioner's
common-law wife and Jeanette Armstrong's mother. She was later given
immunity from prosecution in return for her testimony. Record
1178-1179.
|
| [126] |
*fn5 Thomas Kersey normally kept large sums of
money in his wallet and indiscriminately showed the cash to people he
dealt with. A few weeks before his murder, Kersey revealed the contents of
his wallet to the petitioner and bragged that at any time he could "dig up
$15,000, $16,000." 399 So. 2d, at 1365. See Record
1205-1206.
|
| [127] |
*fn6 Ida Jean Shaw's trial testimony
contradicted her earlier statements to police. When police initially
questioned her, she insisted that Jeanette had been shot by an unknown
assailant while she and Jeanette had been traveling to a nearby town. Id.,
at 1191-1192. Later she gave investigators a statement implicating the
petitioner and Sampson Armstrong in the murders. Id., at 1209-1210.
Subsequently, she gave two more statements repudiating the statement
implicating the petitioner. Id., at 1208-1209.
In his closing argument, the prosecutor acknowledged the conflict
between Ida Jean Shaw's testimony that she was not in the yellow Buick the
morning of the murders, and the testimony of a witness who saw her in the
car shortly before and after the murders. The prosecutor deemed the
inconsistency irrelevant. Id., at 1571-1572.
|
| [128] |
*fn7 At the sentencing hearing, the prosecutor
theorized that the petitioner was not the "trigger man," but the "person
who set it all up." Id., at 1679. The prosecutor admitted that he did not
"know whether [the petitioner] set foot inside that house or not. But he
drove them there. He set it up, planned it." Id., at 1679-1680. In this
Court as well, the State acknowledges that the petitioner "was apparently
not the triggerman in the two murders involved in his [sic] case." Brief
in Opposition 14.
|
| [129] |
*fn8 In Florida at the time of the Kersey
murders, first-degree murder was defined in Fla. Stat. § 782.04(1)(a)
(1973) as
"[the] unlawful killing of a human being, when perpetrated from a
premeditated design to effect the death of the person killed or any human
being, or when committed by a person engaged in the perpetration of, or in
the attempt to perpetrate, any . . . robbery . . . ." In instructing the
jury on first-degree murder, the judge read the above provision verbatim.
Record 1605-1606. He also added that "[the] killing of a human being while
engaged in the perpetration of or in the attempt to perpetrate the offense
of robbery is murder in the first degree even though there is no
premeditated design or intent to kill." Id., at 1606. Distinguishing
first- and second-degree felony murder, the judge stated: "In order to
sustain a conviction of first degree murder while engaging in the
perpetration of or in the attempted perpetration of the crime of robbery,
the evidence must establish beyond a reasonable doubt that the defendant
was actually present and was actively aiding and abetting the robbery or
attempted robbery, and that the unlawful killing occurred in the
perpetration of or in the attempted perpetration of the robbery. "In order
to sustain a conviction of second degree murder while engaged in the
perpetration of or the attempted perpetration of robbery, the evidence
must establish beyond a reasonable doubt that the unlawful killing was
committed in the perpetration of or in the attempted perpetration of
robbery, and that the defendant actually, although not physically present
at the time of the commission of the offense, did, nonetheless, procure,
counsel, command or aid another to commit the crime." Id., at
1609-1610.
|
| [130] |
*fn9 On the motion of the petitioner and the
prosecution, Jeanette Armstrong's trial had been severed from the trial of
her co-defendants. Id., at 50, 57. Jeanette Armstrong was tried first and
convicted of two counts of second-degree murder and one count of robbery.
The trial judge sentenced her to three consecutive life sentences. 399 So.
2d, at 1371.
|
| [131] |
*fn10 Under Florida law, the "court shall
conduct a separate sentencing proceeding to determine whether the
defendant should be sentenced to death or life imprisonment." Fla. Stat. §
921.141(1) (1981). The jury renders only an "advisory sentence" based on
the mitigating and aggravating circumstances. § 921.141(2).
At the sentencing hearing, the petitioner presented no evidence, Record
1677, but his attorney argued that the death penalty was inappropriate
because at most the evidence showed that the petitioner saw Thomas
Kersey's money, suggested the robbery, and drove the Armstrongs to the
Kersey house. Id., at 1683-1684. He also argued that death was an
excessive penalty because the gunfight was spontaneous, and beyond the
petitioner's control. Id., at 1684.
|
| [132] |
*fn11 Initially, the trial court failed to make
written findings as required by Fla. Stat. § 921.141(3) (1981). On the
first state appeal, the Florida Supreme Court remanded the case for such
findings. See App. 29.
|
| [133] |
*fn12 Regarding the extent of the petitioner's
involvement, the trial court reasoned that because two different guns had
been used in the murders, and because Jeanette Armstrong had been
seriously wounded by gunfire, the petitioner must have fired one of the
guns. Moreover, since each of the Kerseys was injured by a bullet of each
type, the petitioner must have shot each victim. Id., at 31; 399 So. 2d,
at 1372.
|
| [134] |
*fn13 The court also rejected the other
statutory mitigating circumstances. In particular, the petitioner did not
have a record free of criminal convictions, Fla. Stat. § 921.141(6)(a)
(1981); there was no evidence that he had acted under the influence of
extreme mental or emotional disturbance, § 921.141(6)(b); there was no
evidence that the victims were participants in or consented to the crimes,
§ 921.141(6)(c); there was no evidence that he acted under extreme duress
or under the substantial domination of another person, § 921.141(6)(e);
there was no evidence that the petitioner was incapable of appreciating
the criminality of his conduct or conforming his conduct to the
requirements of law, § 921.141(6)(f); and because he was 42 years old at
the time of the offense, his age was not a mitigating factor, §
921.141(6)(g). App. 32; 399 So. 2d, at 1372-1373.
|
| [135] |
*fn14 The trial court made nearly identical
findings for Sampson Armstrong. In particular, it found that the murders
were committed during the course of a robbery, that they were committed
for pecuniary gain, and that they were especially heinous, atrocious, or
cruel. See Armstrong v. State, 399 So. 2d 953, 960-961 (Fla. 1981). The
trial court considered the only possible mitigating circumstance to be
Armstrong's age (23), but did not actually find that fact to be
mitigating. See id., at 962 ("the factor of age was given no
consideration"). Finding that the aggravating circumstances outweighed the
mitigating circumstances, the trial judge imposed the death penalty for
each murder conviction, and imposed a life sentence for the robbery. Id.,
at 955, 962.
|
| [136] |
*fn15 The Florida Supreme Court also affirmed
the convictions and sentences of Sampson Armstrong. See Armstrong v.
State, supra, at 960.
|
| [137] |
*fn16 Second-degree murder, based on felony
murder, is defined in Fla. Stat. § 782.04(3) (1973):
"[When] committed in the perpetration of, or in the attempt to
perpetrate, any . . . robbery, . . . except as provided in subsection (1),
it shall be murder in the second degree . . . punishable by imprisonment
in the state prison for life or for such term of years as may be
determined by the court."
|
| [138] |
*fn17 The court also noted that Sampson
Armstrong's admissions to J. B. Neal made no mention of the petitioner,
and that the petitioner's admissions to Ida Jean Shaw indicated only "his
complicity." 399 So. 2d, at 1370.
|
| [139] |
*fn18 In Armstrong, the Florida Supreme Court
expressly had rejected the trial court's conclusion that the Kerseys were
murdered in order to eliminate them as witnesses. "It simply cannot be
said that there was proof that the robbers killed in order to assure that
there would be no witnesses against them." 399 So. 2d, at 963. On the
contrary, "[the] only direct account of what transpired is from the
testimony of J. B. Neal about Armstrong's statement to him. By that
account, the shootings were indeed spontaneous and were precipitated by
the armed resistance of Mrs. Kersey." Ibid. In reaching this conclusion,
the State Supreme Court also rejected the trial court's conclusions
derived from the pathologist's testimony. Rather than indicating that the
victims were prone when shot, the pathologist's testimony "as to the
direction of fire and the positions of the victims when shot [was]
equivocal at best." Ibid.
|
| [140] |
*fn19 In this Court, the petitioner neither
challenges his convictions for robbery and felony murder nor argues that
the State has overstepped constitutional bounds in defining murder to
include felony murder. The petitioner's sole challenge is to the penalty
imposed for the murders.
|
| [141] |
*fn20 Although the petitioner ostensibly relies
on the fact that he was not the triggerman, the core of his argument is
that the death penalty is disproportionate to his crime because he did not
have the specific intent to kill the Kerseys. Pulling the trigger is only
one factor, albeit a significant one, in determining intent. See Tr. of
Oral Arg. 21-23 (counsel for petitioner asserting that so long as a
defendant had the intent to kill, he need not actually have pulled the
trigger in order to be subjected to capital punishment, and that even if
he had pulled the trigger, he would not be subject to the death penalty
absent a specific intent to kill).
|
| [142] |
*fn21 The Eighth Amendment provides that
"Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted."
|
| [143] |
*fn22 See Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976) (holding that Louisiana's
mandatory death penalty statute violated the Eighth and Fourteenth
Amendments); Woodson v. North Carolina, 428 U.S. 280 (1976) (holding that the State's
mandatory death penalty statute violated the Eighth and Fourteenth
Amendments); Jurek v. Texas, 428 U.S. 262 (1976)
(upholding the Texas death penalty statute); Proffitt v. Florida, 428 U.S. 242 (1976) (upholding Florida's death
penalty statute).
|
| [144] |
*fn23 In only one case since Gregg has this
Court upheld a challenged death sentence. See Dobbert v. Florida, 432 U.S. 282 (1977) (holding that changes in the
death penalty statute between the time of the murder and the sentencing
did not amount to an ex post facto violation). In five cases, the Court
vacated the death sentence because the sentencer could not or did not
consider all mitigating factors proffered by the defendant. See Roberts
(Harry) v. Louisiana, 431 U.S. 633 (1977) (per
curiam); Lockett v. Ohio, 438 U.S. 586 (1978)
(plurality opinion); Bell v. Ohio, 438 U.S. 637
(1978) (plurality opinion); Green v. Georgia, 442 U.S. 95 (1979) (per curiam); Eddings v. Oklahoma, 454 U.S. 104
(1982) (adopting the reasoning of the Lockett plurality as the holding of
the Court). In two cases, the Court reversed the judgments affirming the
death sentences because the jury had been selected in violation of
Witherspoon v. Illinois, 391 U.S. 510 (1968). See
Adams v. Texas, 448 U.S. 38 (1980); Davis v. Georgia,
429 U.S. 122 (1976) (per curiam). In five other
cases, the Court vacated death sentences for a variety of reasons
unrelated to the proportionality of the punishment to the crime. See
Gardner v. Florida, 430 U.S. 349 (1977) (plurality
opinion) (due process violated when defendant had no chance to explain or
deny information given to the sentencing judge); Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion) (reversing
the death sentence because the aggravating circumstance relied upon by
jury was not so tailored as to avoid arbitrary and capricious infliction
of death penalty); Beck v. Alabama, 447 U.S. 625
(1980) (holding that death penalty may not be imposed where jury was
precluded from considering lesser included non-capital offense, when
evidence existed to support such a verdict); Bullington v. Missouri, 451 U.S. 430 (1981) (holding that Double Jeopardy
Clause prevented imposition of death sentence upon retrial when jury had
imposed life imprisonment at the first trial); Estelle v. Smith, 451 U.S. 454 (1981) (holding that admission of
psychiatrist's testimony at the penalty phase of the capital trial
violated the defendant's Fifth Amendment privilege against
self-incrimination because he had not been told before his psychiatric
examination that his statements could be used against him during the
sentencing proceeding).
In Coker v. Georgia, 433 U.S. 584 (1977), the
Court vacated a death sentence for a man who had been convicted of rape of
an adult woman. Nevertheless, the Court made clear that the death penalty
is not per se disproportionate to the crime of murder. See, e. g., id., at
591 (opinion of WHITE, J.) ("It is now settled that the death penalty is
not invariably cruel and unusual punishment within the meaning of the
Eighth Amendment; . . . neither is it always disproportionate to the crime
for which it is imposed"); id., at 604 (opinion of BURGER, C. J.)
(accepting "that the Eighth Amendment's concept of disproportionality bars
the death penalty for minor crimes," but rejecting the argument that death
is a disproportionate punishment for rape, much less
murder).
|
| [145] |
*fn24 Strictly speaking, this Court cannot
state unequivocally whether the petitioner specifically intended either to
kill the Kerseys or to have them killed because the trial court made no
findings on these issues. The trial court, however, did make the finding,
not rejected by the Florida Supreme Court, that the petitioner's
participation was not minor, but "major" in that he "planned the capital
felony and actively participated in an attempt to avoid detection by
disposing of the murder weapons." App. 32. Accordingly, I proceed on the
assumption that the petitioner's only intent was to commit an armed
robbery with his accomplices, the Armstrongs.
|
| [146] |
*fn25 JUSTICE POWELL concurred in the
plurality's reasoning in concluding that "ordinarily" death was
disproportionate for such a crime, but stopped short of a per se rule. 433 U.S., at 601. JUSTICE BRENNAN and JUSTICE
MARSHALL concurred in the judgment, adhering to their previously announced
views that the death penalty is in all circumstances cruel and unusual
punishment prohibited by the Eighth and Fourteenth Amendments. See id., at
600-601.
|
| [147] |
*fn26 In fact, two of those States, Louisiana
and North Carolina, did not define rape as a capital felony when they
reenacted their death penalty statutes following their invalidation in Woodson v.
North Carolina, 428 U.S. 280 (1976), and Roberts v.
Louisiana, 428 U.S. 325 (1976). See 433
U.S., at 594. Consequently, at the time Coker was decided only
Georgia authorized the death penalty for the rape of an adult
woman.
|
| [148] |
*fn27 The Court has conducted a less searching
inquiry for punishments less than death. See Rummel v. Estelle,
445 U.S. 263 (1980) (upholding, against an Eighth
Amendment challenge, a life sentence imposed under a state recidivist
statute); Hutto v. Davis, 454 U.S. 370 (1981) (per
curiam) (upholding, on the basis of Rummel, a 40-year sentence for two
marihuana convictions). In Rummel, the Court expressly noted that, for
purposes of Eighth Amendment analysis, those "decisions applying the
prohibition of cruel and unusual punishments to capital cases are of
limited assistance in deciding the constitutionality" of prison sentences.
445 U.S., at 272.
|
| [149] |
*fn28 According to one source, at early common
law most felonies were capital crimes, but attempts were punished as
misdemeanors and accidental killings were not punishable at all. The
felony-murder rule was an effort to create felony liability for accidental
killings caused during the course of an attempted felony. See ALI, Model
Penal Code § 210.2, Comment, p. 31, n. 74 (Off. Draft and Revised Comments
1980).
|
| [150] |
*fn29 See English Homicide Act of 1957, 5 &
6 Eliz. 2, ch. 11. The English attitude toward capital punishment, as
reflected in recent legislation, differs significantly from American
attitudes as reflected in state legislation; in 1965, England abolished
the death penalty for all murders. See Murder (Abolition of Death Penalty)
Act of 1965, 8 Halsbury's Statutes of England 541 (3d ed.
1969).
|
| [151] |
*fn30 See Comment, The Constitutionality of
Imposing the Death Penalty for Felony Murder, 15 Hous. L. Rev. 356,
364-365 (1978); Alderstein, Felony-Murder in the New Criminal Codes, 4 Am.
J. Crim. L. 249, 251-252 (1976).
|
| [152] |
*fn31 See, e. g., Royal Commission on Capital
Punishment 1949-1953, Report 31-33 (1953) (reporting that application of
the felony-murder doctrine was limited to those cases in which the verdict
could have been intentional murder); Law Revision Commission of the State
of New York, 3d Annual Report 665, 668, and n. 444 (1937). It is
significant that the New York Legislature rejected the Commission's
recommendation of requiring some element of mens rea, and instead adopted
a scheme giving jurors discretion to recommend life sentences. See 1937 N.
Y. Laws, ch. 67.
|
| [153] |
*fn32 The extent of jury nullification and the
nearly complete repudiation of mandatory death penalty laws led a
plurality of this Court to conclude that the "two crucial indicators of
evolving standards of decency respecting the imposition of punishment in
our society -- jury determinations and legislative enactments -- both
point conclusively to the repudiation of automatic death sentences." Woodson
v. North Carolina, 428 U.S., at 293 (opinion of
Stewart, POWELL, and STEVENS, JJ.). These factors supported the Court's
conclusion that North Carolina's mandatory death penalty law violated the
Eighth Amendment.
|
| [154] |
*fn33 See App. D to Brief for Petitioner.
Moreover, the last nontriggerman was executed in 1955. By contrast, 72
rapists were executed between 1955 and this Court's 1977 decision in
Coker. Brief for Petitioner 34-35.
|
| [155] |
*fn34 See App. E to Brief for Petitioner; NAACP
Legal Defense and Education Fund, Inc., Death Row U. S. A. (Oct. 20,
1981).
|
| [156] |
*fn35 Only Missouri, New Hampshire, and
Pennsylvania define felony murder as a crime distinct from capital murder.
See Mo. Rev. Stat. §§ 565.001, 565.003, 565.008(2) (1978); N. H. Rev.
Stat. Ann. §§ 630:1, 630:1-a(I)(b)(2), 630:1-a(III) (1974 and Supp. 1981);
18 Pa. Cons. Stat. §§ 2502(a), (b), (d), 1102(b) (1980). One exception to
the New Hampshire scheme is § 630:1(I)(b), which includes in the
definition of capital murder a death caused "knowingly" in the course of a
kidnaping. A fourth State, Washington, permits imposition of the death
penalty if premeditated murder is aggravated by, inter alia, commission
during a felony. Wash. Rev. Code §§ 9A.32.030(1)(a), 10.95.020(9)
(1981).
|
| [157] |
*fn36 See Ariz. Rev. Stat. Ann. §§
13-1105(A)(2), (C) (Supp. 1981-1982); Cal. Penal Code Ann. §§ 189, 190
(West Supp. 1982); Colo. Rev. Stat. §§ 18-3-102(1)(b), 18-1-105(1)(a)
(1978 and Supp. 1981); Conn. Gen. Stat. Ann. §§ 53a-54b, 53a-54c,
53a-35a(1) (West Supp. 1982); Fla. Stat. §§ 782.04(1)(a), 775.082(1)
(1981); Ga. Code §§ 26-1101(b), (c) (1978); Idaho Code §§ 18-4003(d), 4004
(1979); Ind. Code §§ 35-42-1-1(2), 35-50-2-3(b) (Supp. 1981); Miss. Code
Ann. §§ 97-3-19(2)(e), 97-3-21 (Supp. 1981); Mont. Code Ann. §§
45-5-102(1)(b), (2) (1981); Neb. Rev. Sat. §§ 28-303(2), 28-105(1) (1979);
Nev. Rev. Stat. §§ 200.030(1)(b), 200.030(4)(a) (1981); N. M. Stat. Ann.
§§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp. 1981); N. C. Gen. Stat. §
14-17 (1981); Okla. Stat., Tit. 21, §§ 701.7(B), 701.9(A) (1981); S. C.
Code §§ 16-3-10, 16-3-20(C)(a)(1) (1976 and Supp. 1981); S. D. Codified
Laws §§ 22-16-4, 22-16-12, 22-6-1(1), 22-3-3 (1979 and Supp. 1981); Tenn.
Code Ann. §§ 39-2402(a), (b) (Supp. 1981); Vt. Stat. Ann., Tit. 13, §§
2301, 2303(b), (c) (1974 and Supp. 1981); and Wyo. Stat. §§ 6-4-101(a),
(b) (1977).
Two of these States, Colorado and Connecticut, provide that it is an
affirmative defense to the capital crime if the accomplice did not "in any
way solicit, request, command, importune, cause or aid the commission" of
the homicidal act; was not armed with a deadly weapon and had no reason to
believe that his cofelons were so armed; and did not engage or intend to
engage, and had no reason to believe that his cofelons would engage in
conduct "likely to result in death or serious bodily injury." See Colo.
Rev. Stat. § 18-3-102(2) (1978); Conn. Gen. Stat. § 53a-54c (Supp. 1982).
Colorado also prevents imposition of the death penalty if the defendant's
role, though sufficient to establish guilt, was "relatively minor." Colo.
Rev. Stat. § 16-11-103(5)(d) (1978). Even if they were available under the
Florida statute, these provisions would have been of no help to the
petitioner since the trial court found that there were no mitigating
circumstances, in part because Enmund's role in the capital felony was not
minor. See Fla. Stat. § 921.141(6)(d) (1981). The State Supreme Court
expressly affirmed the trial court's finding of no mitigating
circumstances, and therefore the finding that the petitioner's role was
not minor. 399 So. 2d, at 1373. Of course, not all of the statutes listed
above are identical. Several of them provide that robbery murder is a
capital felony, but require proof of additional aggravating circumstances,
e. g., the defendant had been convicted previously of a violent felony, or
the victim was a correctional officer, before the death penalty can be
imposed. See, e. g., Okla. Stat., Tit. 21, § 701.12 (1981); N. M. Stat.
Ann. §§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp. 1981). Others, like the
Florida statute, define robbery murder as a capital offense and use the
robbery as an aggravating circumstance. The common thread in all of these
statutes, however, is that the defendant need not have the intent to kill
in order to be subject to the death penalty. The Court's additional
subdivision of this group of statutes, see ante, at 791-793, and nn.
10-13, serves only to obscure the point that 20 States permit imposition
of the death penalty even though the defendant did not actually kill, and
had no intent to kill.
|
| [158] |
*fn37 See Ark. Stat. Ann. §§ 41-1501(1)(a),
(2), (3) (1977) (a capital crime if death occurs during commission of the
felony "under circumstances manifesting extreme indifference to the value
of human life"); Del. Code Ann., Tit. 11, §§ 636(a)(6), 636(b), 4209(a)
(1979) (a capital crime only if the death is caused "with criminal
negligence"); Ky. Rev. Stat. § 507.020(1)(b), (2) (Supp. 1980) (defendant
must "[cause] the death of another person" under "circumstances
manifesting extreme indifference to human life [and while] wantonly
[engaging] in conduct which creates a grave risk of death to another
person"). It is an affirmative defense to capital felony murder in
Arkansas if the "defendant did not commit the homicide act or in any way
solicit, command, induce, procure, counsel, or aid its commission." Ark.
Stat. Ann. § 41-1501(2) (1977).
At oral argument, counsel for petitioner stated that "the determining
factor is the intent to take life, conscious purpose to take life." Tr. of
Oral Arg. 18. Under the petitioner's proposed standard, these statutes
would be unconstitutional.
|
| [159] |
*fn38 See Ala. Code §§ 13A-2-23,
13A-5-40(a)(2), (b), (c), (d), 13A-6-2(a)(1) (1977 and Supp. 1982) (the
accomplice is not guilty of capital murder unless the killing is
intentional, and the accomplice had "intent to promote or assist the
commission" of the murder); Ill. Rev. Stat., ch. 38, paras. 9-1(a)(3),
9-1(b)(6) (1979) (a capital crime only if the defendant killed
intentionally or with knowledge that his actions "created a strong
probability of death or great bodily harm"); La. Rev. Stat. Ann. §
14.30(1) (West Supp. 1982) (defendant is guilty of capital murder only if
he had "specific intent to kill or to inflict great bodily harm"); Ohio
Rev. Code Ann. §§ 2903.01(B), (C), (D), 2929.02(A), 2929.04(A)(7) (1982)
(accomplice is not guilty of the capital crime unless he "purposely
[caused]" the death and was "specifically found to have intended to cause
the death of another"; if defendant is not the "principal offender," the
death penalty is precluded unless he "committed the aggravated murder with
prior calculation and design"); Tex. Penal Code Ann. §§ 12.31,
19.03(a)(2), 19.02(a)(1) (1974) (defendant is guilty of capital murder
only if he "intentionally or knowingly" caused death during the course of
the robbery); Utah Code Ann. §§ 76-5-202(1)(d), (2), 76-3-206(1) (1978)
(defendant is guilty of capital murder only if he "intentionally or
knowingly" caused the death during the course of the robbery); and Va.
Code §§ 18.2-31(d), 18.2-10(a) (1982) (capital murder only if killing is
"willful, deliberate and premeditated").
|
| [160] |
*fn39 See Ill. Rev. Stat., ch. 38, paras.
9-1(a)(3), 9-1(b)(6) (1979) (a capital crime only if the defendant
actually killed the victim and the defendant killed intentionally or with
knowledge that his actions "created a strong probability of death or great
bodily harm"); Md. Ann. Code, Art. 27, §§ 410, 412(b), 413(d)(10), (e)(1)
(1982) (except in cases of murder for hire, only principal in the first
degree subject to the death penalty); Va. Code §§ 18.2-31(d), 18.2-10(a),
18.2-18 (1982) (except in cases of murder for hire, only the immediate
perpetrator of the homicide, and not accomplice before the fact or
principal in the second degree, may be tried for capital murder). Note
that Illinois and Virginia also require an intent to kill. See n. 38,
supra.
|
| [161] |
*fn40 The Court's attempt to downplay the
significance of Enmund's role in the murders, see ante, at 786-787, n. 2,
does not square with the facts of this case. The trial court expressly
found that because Enmund had planned the robbery, his role was not minor,
and that therefore no statutory mitigating circumstances applied. The
Florida Supreme Court affirmed the finding of no mitigating circumstances,
thereby affirming the underlying factual predicate -- Enmund had planned
the armed robbery. Moreover, even Enmund's trial counsel conceded at the
sentencing hearing that Enmund initiated the armed robbery and drove the
getaway car. See n. 10, supra.
The Court misreads the opinion below in suggesting that the State
Supreme Court deduced from the sentencing hearing that Enmund's only
participation was as the getaway driver. In fact, the court made that
statement with respect to the guilt phase of the trial. As I mentioned
above, Enmund's counsel conceded at the sentencing hearing that Enmund had
initiated the armed robbery.
|
| [162] |
*fn41 It is not true, as the petitioner
suggests, that an intent-to-kill requirement would not interfere with the
State's substantive categories of murder. Prohibiting the death penalty
for accomplice felony murder would create a category of murder between
capital murder, for which the death penalty is permitted, and the next
statutory degree, for which some term of years (typically less than life
imprisonment) is imposed.
|
| [163] |
*fn42 The petitioner and the Court also contend
that capital punishment for felony murder violates the Eighth Amendment
because it "makes no measurable contribution to acceptable goals of
punishment." Coker v. Georgia, 433 U.S., at 592. In
brief, the petitioner and the Court reason that since he did not
specifically intend to kill the Kerseys, since the probability of death
during an armed robbery is so low, see ALI, Model Penal Code, supra n. 28,
§ 210.2, Comment, p. 38, n. 96 (concluding from several studies that a
homicide occurs in about one-half of one percent of all robberies), and
since the death penalty is so rarely imposed on nontriggermen, capital
punishment could not have deterred him or anyone else from participating
in the armed robbery. The petitioner and the Court also reject the notion
that the goal of retribution might be served because his "moral guilt" is
too insignificant.
At their core, these conclusions are legislative judgments regarding
the efficacy of capital punishment as a tool in achieving retributive
justice and deterring violent crime. Surely, neither the petitioner nor
the Court has shown that capital punishment is ineffective as a deterrent
for his crime; the most the Court can do is speculate as to its effect on
other felony murderers and rely on "competent observers" rather than
legislative judgments. See ante, at 799-800. Moreover, the decision of
whether or not a particular punishment serves the admittedly legitimate
goal of retribution seems uniquely suited to legislative resolution.
Because an armed robber takes a serious risk that someone will die during
the course of his crime, and because of the obviousness of that risk, we
cannot conclude that the death penalty "makes no measurable contribution
to acceptable goals of punishment."
|
| [164] |
*fn43 Apparently, the Court also intends that
the case be remanded for a new death sentence hearing, consistent, of
course, with its holding today.
|
| [165] |
*fn44 Although the petitioner challenges the
constitutionality of his sentencing hearing, he does not challenge the
constitutionality of the statutory capital sentencing procedures. See
Proffitt v. Florida, 428 U.S. 242 (1976) (upholding
the Florida scheme).
|
| [166] |
*fn45 See Songer v. State, 365 So. 2d 696, 700
(Fla. 1978) (holding that Fla. Stat. § 921.141(6) (1981), which lists
mitigating circumstances, does not restrict the sentencer's consideration
of mitigating circumstances to those expressly listed in the statute);
Shriner v. State, 386 So. 2d 525, 533 (Fla. 1980), cert. denied, 449 U.S. 1103 (1981); 399 So. 2d, at 1371. As noted
above, the petitioner offered no additional evidence at the sentencing
hearing in mitigation of his crime. See Record 1677. His counsel argued,
however, that the petitioner did not deserve the death penalty because his
role in the crime was relatively minor. Id., at 1683-1685.
|
| [167] |
*fn46 The Florida Supreme Court's opinion fails
to correct this error either by remanding for new sentencing or by
evaluating the impact of the trial court's fundamental misperception of
the petitioner's role in the killings. Rather, the court simply repeats
three times, without any discussion of the evidence, that there are "no
mitigating circumstances." 399 So. 2d, at 1373. In light of the court's
dramatically different factual findings, this review is inadequate to
satisfy the Lockett principle.
|