On petition for writ of certiorari to the Court of Criminal
Appeals of Texas.
The petition for writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Petitioner in this case seeks no revolutionary expansion of the
principles underlying this Court's current death-penalty
jurisprudence. All he asks is the benefit of existing law as
proclaimed by a majority of this Court. This Court has declared
that a sentence of death may not be imposed on one "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."
Enmund v. Florida,
458 U.S.
782, 797, 3376 (1982). Yet the Court's refusal to consider
petitioner's case countenances just that result. Even if I
believed, therefore, that the death penalty could constitutionally
be imposed under certain circumstances,1 I would grant certiorari
in this case and vacate the death sentence imposed here.
Page 474 U.S.
866 , 867
I
At his murder trial, petitioner Darryl Elroy Stewart and his
accomplice Kelvin Kelly provided conflicting theories about the
crime. According to Stewart's statement, which the State introduced
at trial, he and Kelly were walking past the deceased's apartment
when Kelly saw through the open door a stereo that he wanted to
steal. Kelly told Stewart that he was going to run in and grab the
stereo, and instructed Stewart to stand guard at the door. Stewart
heard a woman scream; heard Kelly attempt to force sexual relations
on her; saw glimpses of a struggle; and heard two shots. Thus,
Stewart's statement indicated that he agreed to assist in Kelly's
theft of the stereo; that Kelly strayed from the plan to steal the
stereo and attempted to commit a sexual offense against the
occupant of the apartment; and that during the course of this
offense Kelly killed the victim. If Stewart's account of the crime
is accepted, he did not himself kill, did not attempt to kill, and
did not intend that a killing would take place. According to Kelly,
however, it was Stewart who entered the apartment to commit
burglary, Stewart who had the gun, Stewart who attempted a sexual
assault on the victim, and Stewart who killed her, while Kelly
waited at the door; the State introduced some evidence
corroborating this story. Kelly was promised, in exchange for his
testimony, that he would receive no more than 50 years in
prison.
II
The jury was asked to resolve this conflicting evidence and
determine the guilt or innocence of Stewart on the murder charge.
In order to guide the jury in that endeavor, the trial judge gave a
lengthy instruction on the Texas "law of parties," set out in full
in the margin. [
Footnote 2]
686
S.W.2d 118, 123 (Tex.Crim.App.1984).
Page 474 U.S.
866 , 868
The instructions provided the jury with two theories of capital
murder. First, the jury could find Stewart guilty of having
intentionally shot the victim himself. Alternatively, the jury
could find the following series of facts: that Stewart conspired to
commit burglary; that the murder was committed by Kelly in the
course of the burglary; that Stewart was intentionally aiding Kelly
in the execution of the burglary at the time that Kelly committed
the murder; and that the murder was an offense that " should have
been anticipated" as a result of the conspiracy. Either of the two
findings would support a verdict of guilty of capital murder.
The jury returned a verdict of guilty. Defense counsel requested
that the jury be instructed to specify upon which of the two murder
offenses it had convicted Stewart, but the trial judge denied the
request. The trial proceeded to the sentencing phase, and
petitioner was sentenced to die.
III
Under the Texas capital murder statute, a murder does not
constitute capital murder merely because it was committed in the
course of a burglary or other specified felony. The statute
explicitly provides that the murder must have been committed
"intentionally" in the course of the other felony. Tex. Penal Code
Ann. 19.03(a)(2) (Supp.1985). In theory, therefore, a person cannot
be required to face the death penalty without having acted with
an
Page 474 U.S.
866 , 869
intent to kill. Ironically, it was this reading of the statute
that led this Court, in Enmund, to number Texas among the States
that did not permit a capital sentence to be imposed upon a person
convicted only of felony murder. 458 U.S., at 790, n. 7, n. 7.
The Enmund Court's assessment, however, did not take into
account the Texas "law of parties." Under that law, a person can be
punished for an offense committed by another if he is "criminally
responsible" for the other person. Tex.Penal Code Ann. 7.01(a)
(1974). The "criminal responsibility" of person A arises if A
conspires to commit one felony and, in furtherance of that unlawful
purpose, a co-conspirator in the first felony commits a second
offense that "should have been anticipated" as a result of the
conspiracy. The statute explicitly provides that A is guilty of the
second offense even "though having no intent to commit it."
Tex.Penal Code Ann. 7.02(b) (1974); see Ruiz v. State,
579
S.W.2d 206, 209 (1979) ("[S]ection 7.02(b) . . . eliminates any
necessity on the part of the State to prove the appellant had any
intent to kill"). If the first offense is burglary, and the
co-conspirator's second offense happens to be murder, then A may be
deemed to have committed capital murder-even though the capital
murder statute requires that the murder be committed intentionally
in the course of a felony. The vulnerability of A to a capital
charge under these circumstances, therefore, is entirely dependent
on the acts of his co-conspirator; A 's own criminal accountability
is not entirely within his control. In this application of the
Texas statutes, every intent element that would normally guard
against a capital charge for one who did not kill or intend to kill
can be neatly circumvented and substituted with the fiction of
vicarious intent. This is no mere theoretical quirk in state law;
it is precisely the train of logic that quite possibly led to the
death sentence in this case.
The entire conduct of petitioner's trial operated to buttress
the prejudice created by the State's reliance on this illusory
edifice of intent. For example, every juror who ended up on
petitioner's panel had stated in voir dire that he or she could
find a nontriggerman guilty of capital murder and could impose the
death sentence, even if the defendant had no specific intent to
kill or to cause a killing. [
Footnote 3] Moreover, when the defense attorney
attempted
Page 474 U.S.
866 , 870
to explain to the jury that the law of parties-that is,
vicarious intent- is not applicable to sentencing decisions, the
trial court sustained the prosecutor's objection on the ground that
counsel had misstated the law. Further, the judge did not instruct
the jury that at the sentencing stage it was obliged to consider
mitigating circumstances, such as the possibility that Stewart
played a relatively minor role in the murder. [
Footnote 4] At every step of the way, one or more
of these factors contributed to the likelihood that the jury failed
to understand that it could not rely on vicarious intent to
determine whether a defendant deserves to die.
Respondent contends that any deficiency in the jury's
consideration of intent was cured at the sentencing phase. The
judge's charge to the jury made it clear that imposition of the
death sentence would be contingent upon a jury finding that "the
conduct of the defendant that caused the death of the deceased was
committed deliberately and with the reasonable expectation that the
death of the deceased or another would result." See Tex.Code
Crim.Proc.Ann., Art. 37.071(b)(1) (Vernon 1981). But the
deliberateness of a burglary simply cannot be equated with an
intent to kill. Moreover, it seems that the judge informed the
jury, over defense objection, that the conduct which must be found
to be deliberate as a prerequisite to the death sentence includes
the conduct of the triggerman, as attributed to the defendant
through the law of parties. Thus, the "individualized
consideration" of the
Page 474 U.S.
866 , 871
defendant's own culpability, required by Lockett v. Ohio,
438 U.S.
586, 605, 2965 (1978), was entirely neglected. Nor can the
constitutional demand for culpable intent be satisfied by the
jury's finding that there was a reasonable expectation that death
would result from the burglary. Such a finding does not even
purport to be a measure of "personal responsibility and moral
guilt," without which a defendant cannot be held accountable with
his life. Enmund v. Florida, 458 U.S., at 801.
IV
This case differs from Enmund in only one pertinent respect. In
Enmund, the only evidence implicating the defendant was an
inference that he was waiting near the scene of the crime in order
to help the principal perpetrators escape. Id., at 788. No
conflicting evidence tended to show that Enmund may have been the
actual killer. Here, in contrast, there was some evidence tending
to establish Stewart as the triggerman. Nevertheless, we cannot be
certain whether the jury imposed a sentence of death in the absence
of an essential factual premise or not. For purposes of determining
whether the Constitution has been violated, therefore, we simply
cannot discount the grave possibility that Stewart was sentenced to
death without the mental state that Enmund recognized as
prerequisite to any such sentence. [
Footnote 5] See Sandstrom v. Montana,
442 U.S.
510, 517, 2455 (1979). The courts should not permit
unconstitutional death sentences to escape meaningful
Page 474 U.S.
866 , 872
review merely because one can conceive of an alternative theory
under which the execution can be imagined to fall within the terms
of this Court's demands. The obligation of the courts is especially
compelling here, because the State clearly had the option of
eliminating any doubt on the issue by charging only the intentional
murder offense and thus forestalling any Enmund problem. At least
the State might have refrained from objecting to the defense
counsel's attempts to inform the jury regarding the inapplicability
of the law of parties at the sentencing phase. One cannot help but
wonder why the State did not do anything to reduce the confusion,
if it is indeed as confident as it claims to be that the jury's
finding of guilt was based solely on intentional murder.
The likelihood that Stewart was convicted and sentenced to death
on a theory of vicarious intent requires that Enmund be our guide
in evaluating the legal claims put forward by petitioner. Like
Enmund, Stewart has been sentenced to death "in the absence of
proof" that he "killed or attempted to kill," or that he "intended
or contemplated that life would be taken." 458 U.S., at 801. Some
disputed evidence suggested that Stewart had such intent, but we
have no proof thereof, and we cannot tell from the verdict whether
the jury so found.
V
Although this Court upheld the Texas capital sentencing scheme
against certain challenges in Jurek v. Texas,
428 U.S. 262 (1976),
petitioner's case demonstrates that the statute must be measured
against a different standard when the State seeks to execute one
convicted of felony murder. In this context, the statute is wholly
inadequate to meet the constitutional demands articulated in
Enmund, because it does not ensure that the ultimate sentence will
be reserved for those who have intended to kill. Quite simply, that
is what Enmund demands, and what the Eighth and Fourteenth
Amendments, at a minimum, require. I would grant the petition,
vacate the sentence, and remand for further proceedings.
Footnotes
Footnote 1 I continue to
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, 231, 2973 (1976) (MARSHALL, J., dissenting); Furman v.
Georgia,
408 U.S.
238, 314, 2764 (1972) ( MARSHALL, J., concurring).
Footnote 2 The judge charged
the jury as follows: " 'Now, if you find from the evidence beyond a
reasonable doubt that . . . the Defendant, Darryl Elroy Stewart,
did while in the course of committing or attempting to commit
burglary of a habitation, . . . intentionally caused [sic] the
death of [the victim] by shooting her with a gun, then you will
find the Defendant guilty of Capital Murder, as charged in the
Indictment. Or if you find from the evidence beyond a reasonable
doubt that . . . Kelvin Kelly and Darryl Elroy Stewart entered into
a conspiracy to burglarize the habitation . . ., and that pursuant
thereto they did carry out or attempt to carry out such conspiracy
to commit burglary, and while in the course of committing such
burglary,
if any, Kelvin Kelly did intentionally cause the death of [the
victim] by shooting her with a gun and that the Defendant, Darryl
Elroy Stewart, pursuant to said conspiracy, if any, with the intent
to promote, assist, or aid Kelvin Kelly in the commission or
attempted commission of the said burglary, then and there, at the
time of the shooting, if any, was acting with and aiding Kelvin
Kelly in the execution or attempted execution of said burglary, and
that the shooting of [the victim] followed in the execution of the
conspiracy and in furtherance of the unlawful purpose of Kelvin
Kelly and Darryl Elroy Stewart to commit the burglary, and that the
shooting of [the victim] was an offense that should have been
anticipated as a result of the carrying out of the conspiracy, then
you will find the Defendant, Darryl Elroy Stewart, guilty of
Capital Murder as charged in the indictment.' " 686 S.W.2d, at
123-124.
Footnote 3 Petitioner was
sentenced before this Court issued its decision in Enmund.
Petitioner has not made it clear whether defense counsel moved to
strike the panel on the basis of its expressed willingness to
impose death in the absence of intent. Even if he did not, however,
the Enmund claim was preserved by counsel's request for a
specification of the offense on which petitioner was convicted, his
unsuccessful attempt to state to the jury that the law of parties
does not apply at sentencing, and other related objections made at
trial.
Footnote 4 Petitioner argues
that this failure of the trial court to instruct the jury that it
must consider mitigating circumstances violates Eddings v.
Oklahoma,
455 U.S.
104 (1982), in which the Court held that a State may not
preclude the sentencer from considering mitigating circumstances.
Id., at 113-114. Whether Eddings requires such instructions in all
cases has not been explicitly decided. In this case, however, the
lack of instruction concerning the jury's obligation to consider
mitigating factors is particularly troubling, because the
determination that the jury was expected to make at sentencing was
strikingly similar to the findings it had already made at the guilt
phase. Without guidance from the judge, it is quite possible that
the jury believed the death sentence to be an automatic result of
the conviction.
Footnote 5 This Term, the
Court will consider whether Enmund requires that the jury make a
finding of intent, or whether an appellate court may make the
requisite finding upon review of the evidence. See Bullock v.
Lucas,
743 F.2d
244 (CA5 1984), cert. granted sub nom. Cabana v. Bullock, 471
U.S. 1052 (1985). If this Court determines in Bullock that a jury
finding of intent is required, petitioner's sentence will have to
be vacated. Moreover, even if this Court resolves Bullock by
concluding that an appellate finding of intent will suffice under
Enmund, petitioner's sentence should still be vacated, because such
a finding could not be made by an appellate court in this case.
Petitioner's jury did not explicitly convict on one offense or the
other, and the evidence supporting an intentional murder conviction
conflicts with the evidence supporting a conviction for felony
murder. Thus, it would be impossible for an appellate court to
divine which of the mutually exclusive sets of testimony was
accepted by the jury and should accordingly be examined for
indications of intent. We should grant this petition irrespective
of Bullock.
Comments
Be the first to comment
Leave a Comment