On petition for writ of certiorari to the United States Court of
Appeal for the Eleventh Circuit.
The application for stay of execution of the sentence of death
presented to Justice SCALIA and by him referred to the Court is
denied. The petition for writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
The State of Florida will execute Beauford White tomorrow
morning without so much as a determination by its own courts that
his death sentence is currently legal. 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, 2971 (1976) (dissenting opinion). But even were I not
of that view, [ White v. Dugger
483
U.S. 1045 (1987) ][1045-Continued.]
I would dissent from this Court's tacit approval of a death
sentence whose factual predicate the executing State has not
reviewed for consistency with intervening Supreme Court precedent.
I would vote to stay White's execution, grant his petition for writ
of certiorari, and reverse the judgments below denying habeas
relief.
I
As summarized by the Florida Supreme Court, the relevant facts
of this case are as follows: White and two companions entered a
home under a subterfuge to rob its occupants. All three were armed
and wore masks covering their faces from the nose down. After
blindfolding and binding the sole occupant, the three robbers
ransacked the house in search of valuables. Within an hour, seven
acquaintances of the occupant appeared at the house. The three
robbers bound the newcomers. At some point, the mask of one of
White's companions fell off, exposing his face to the victims.
Consequently, the three discussed the need to kill the victims.
White voiced his opposition, but to no avail; his companions
overrode him . White's two companions separated the victims into
two rooms and systematically shot all eight in the back of the
head, killing six. White remained in the house throughout, but did
not participate in the shootings . The three co-felons then
returned to White's motel room to divide their loot. A fourth
participant, a wheelman who never entered the home, testified that
he and White were both
Page 483 U.S.
1045 , 1046
duped into what he later discovered was a planned contract
murder of one or two of the victims. He also testified that White
was visibly shaken afterwards and refused to help dispose of the
weapons.
A Florida jury convicted White of six counts of first-degree
murder, two counts of attempted first-degree murder, and four
counts of robbery, and unanimously recommended a life sentence. The
trial judge, disregarding the jury's unanimous recommendation,
imposed a death sentence . After this Court's decision in Enmund v.
Florida,
458 U.S.
782, 102 S. Ct. 3368 (1982), the Florida courts entertained a
petition for postconviction relief to determine whether White's
conduct exhibited the requisite intent to sustain a death sentence
under that intervening case. The Florida Supreme Court reversed a
lower court finding that Enmund was not satisfied. The court held
that White had the requisite intent (within the meaning of Enmund)
because, "whatever [White] might have originally intended or
contemplated about lethal force being used in the robbery, it can
hardly be said that he did not realize that lethal force was going
to be used in carrying out the robbery." State v. White,
470 So. 2d
1377, 1380 (Fla.1985).
Since then, White has twice sought post-conviction relief from
the Florida courts. He has argued, among other things, that he is
entitled to a new determination as to whether his conduct was
sufficiently culpable to satisfy the new culpability standard that
this Court articulated in Tison v. Arizona,
481 U.S. 137 (1987). On
each occasion, the state courts barred his application as untimely.
White then filed a habeas petition in the United States District
Court for the Southern District of Florida. The District Court
denied relief, and the Court of Appeals for the Eleventh Circuit
affirmed,
828 F.2d
10 (1987). This evening, less than 11 hours before his death,
White filed the instant petition for a writ of certiorari and
application for a stay of execution.
II
While the Florida Supreme Court purported to have found White's
conduct sufficiently culpable to satisfy the Enmund test, it has to
date never reconsidered that determination in light of this Court's
rereading of Enmund in Tison. After briefly summarizing how Tison
modified the Enmund inquiry, I will explain why, in my view, the
modified analysis demands that we vacate White's death sentence,
just as we did in Tison, until such time as the Florida courts have
established the factual predicate that a majority of this
Page 483 U.S.
1045 , 1047
Court has deemed a constitutional prerequisite to the imposition
of a death penalty.
In Enmund, supra, 458 U.S., at 798, this Court declared that a
State may not constitutionally execute a defendant who " did not
kill or attempt to kill" and who had no "intention of participating
in or facilitating a murder." This Term a majority of this Court
departed from that holding when it held in Tison that a death
penalty could constitutionally be imposed for felony murder. The
Tison Court assumed for the sake of argument that the Tison
brothers "did not 'intend to kill' " in the traditional sense:
"Traditionally, 'one intends certain consequences when he desires
that his acts cause those consequences or knows that those
consequences are substantially certain to result from his acts.' "
481 U.S., at 150 (quoting W. LaFave & A. Scott, Criminal Law
28, p. 196 (1972)). Accordingly the Court rejected the creative
attempt of the Arizona Supreme Court (and others) to expand the
traditional definition of intent to encompass foreseeable
consequences. But the Court held that, Enmund notwithstanding, a
defendant who did not intend to kill (in that traditional sense)
could constitutionally be sentenced to death for "major
participation in [a] felony" coupled with "reckless indifference to
human life." 481 U.S., at 158 (footnote omitted).
The correctness of the Tison overlay on Enmund is not at issue
here. More relevant to the issue of the proper disposition of this
case, is the Tison Court's disposition of the case before it.
Having assumed that the Tison brothers lacked traditional intent,
the Court vacated the sentence and remanded for a determination
whether the Tison brothers' participation amounted to "reckless
indifference." 481 U.S., at 158 . In so doing, it minced no words
about its view of the matter: "[T]he record," the Court observed,
"would support a finding of the culpable mental state of reckless
indifference to human life." Id., at 151, 107 S. Ct., at 1684; see
also id., at 152. ("These facts . . . would clearly support a
finding that . . . both [defendants] subjectively appreciated that
their acts were likely to result in the taking of innocent life").
Despite its clear leaning, the Court declined to enter the
requisite Tison findings itself. Nor did it attempt to divine from
what the Arizona courts had said in applying Enmund, what they
would say in applying the new Tison overlay.
The Court's citation to Cabana v. Bullock,
474 U.S. 376 (1986),
suggests that it considered such psychoanalysis improper. Under
Cabana, "it is [the State] . . . not the federal . . . court, which
should first provide [the defendant] with that which he has not
yet
Page 483 U.S.
1045 , 1048
had and to which he is constitutionally entitled-a reliable
determination as to whether he is subject to the death penalty,"
under whatever standards this Court may most recently have
articulated. Id., at 391. As there explained, the right arises not
only because justice demands that the same judicial system that
sentences a defendant to death find the requisite factual predicate
for the sentence, but also because "[c]onsiderations of federalism
and comity counsel respect for the ability of state courts to carry
out their role as the primary protectors of the rights of criminal
defendants. . . ." Ibid. (citation omitted).
I see no reason not to extend to White the same constitutional
entitlement that we extended to the Tison brothers. Nor does the
Florida Supreme Court in this case deserve any less respect than we
afforded the Arizona Supreme Court in Tison. The state court here
no more addressed the Tison overlay than did the Tison state court.
Obviously, it could not have, since at the time of the Florida
Supreme Court's last decision on the merits, Tison had not yet been
decided. See 474 U.S., at 389, 106 S. Ct., at 698-699 ("[T]he
[State] Supreme Court obviously was not addressing the specific
requirements set forth in Enmund, for that case had not yet been
decided").
The only conceivable difference then between this case and Tison
is that here, unlike in Tison, this Court assumes (as did the
courts below) that the State Supreme Court's pre-Tison analysis
encompassed some finding that the petitioner intended, in (what
Tison deems) the traditional sense, that his actions would kill the
victims. I am willing to make no such assumption, however, when a
man's life is at stake. To be sure, the State Supreme Court
observed that there came a point (once White's two accomplices
overruled his objections to murder) at which "it can hardly be said
that he did not realize that lethal force was going to be used in
carrying out the robbery." State v. White, 470 So.2d, at 1380. It
then reiterated its finding that White "stood by while the victims
were shot one by one." Ibid. (citation and internal quotes
omitted). But inaction in the face of an expected murder is a far
cry from the traditional definition of intent to kill. The Florida
Supreme Court never found that White did anything (after coming to
the rude "realiz[ation]" that his co- felons were about to commit
murder) to further the murders. Nor did it find that he could have
done anything to prevent the murders, short of killing his
accomplices or otherwise risking his own life. There is not even
any state finding that White had
Page 483 U.S.
1045 , 1049
either the time or the freedom to dissociate himself from the
sordid affair in the brief interval between the realization and the
murders.
Since the death sentence cannot stand without the requisite
findings by a state court and the state court's findings are
inadequate, I would reverse the judgment of the Court of Appeals.
"[T]he District Court should be directed to issue the writ of
habeas corpus vacating [White's] death sentence but leaving to the
State of [Florida] the choice of either imposing a sentence of life
imprisonment or, within a reasonable time, obtaining a
determination from its own courts of the factual question" that it
never clearly decided-whether White either intended to kill the
victims in the traditional sense, or acted with reckless
indifference to human life. Cabana, supra, 474 U.S., at 392.
III
This Court's refusal to stay White's execution is inexcusable
for yet another reason. It permits the State to put him to death
based, in part, on two aggravating circumstances whose application
to this case is constitutionally suspect, at best. The trial judge
found that the murders committed by White's companions were
"especially heinous, atrocious or cruel" and "were committed in an
effort to avoid arrest by eliminating witnesses to the crime."
White v. State,
403 So. 2d
331, 338 (Fla.1981). In Tison we left open the issue whether a
court may constitutionally attribute to a defendant as an
aggravating factor the manner in which other individuals carried
out the killings. See 481 U.S., at 146, n. 2, n. 2; id., at 160, n.
3, n. 3 ( BRENNAN, J., dissenting). Nor has this Court ever
addressed the related question whether the purposes for which other
individuals committed a crime can be constitutionally attributed to
a defendant as an aggravating circumstance. Such vicarious
attribution "would seem to violate the core Eighth Amendment
requirement that capital punishment be based upon an
'individualized consideration' of the defendant's culpability,"
ibid. ( quoting Lockett v. Ohio,
438 U.S.
586, 605, 2965d 973 (1978)).
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