Petitioners Brief — Enmund v. Florida

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No. 81-5321 DEC 28 1981

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1981

EARL ENMUND,

Petitioner,

against

STATE OF FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA

BRIEF FOR PETITIONER

JACK GREENBERG WILLIAM C. McLAIN

JAMES M. NABRIT, Ill Assistant Public Defender

JOEL BERGER Hall of Justice Annex

JOHN CHARLES BOGER 495 N. Carpenter Street

DEBORAH FINS Bartow, Florida 33830-3798

JAMES S. LIEBMAN

Suite 2030 Attorney of Record

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

New York University

School of Law

40 Washington Square South

New York, New York 10012

Attorneys for Petitioner

EE ee

(i)

QUESTIONS PRESENTED

1. Whether death is an unconstitutionally excessive and

disproportionate penalty under the Eighth and Fourteenth

Amendments for one who neither took life, attempted to take

life, nor intended to take life?

2. Whether petitioner’s degree of participation in the

killings was given inadequate consideration and inadequate

weight by the Florida courts, thereby violating his rights

under the Eighth and Fourteenth Amendments?

(iti)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........-0--+0050seeeees i

TABLE OF AUTHORITIES ..............00500-00055 ii

ORTINIONS BELOW ... nc cccccccccccccccccccccccccens |

BENS cc ccccccccccccccccceccecesccccesscece 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .............--00e eee eens 2

STATEMENT OF THE CASE ............00++eee05: 3

SUMMARY OF THE ARGUMENT ..........--++--- 4

BEE cc ccccccccccccaccesconsescnccesecoscesees 7

I. DEATH IS AN UNCONSTITUTIONALLY

EXCESSIVE AND DISPROPORTIONATE

PENALTY UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS FOR

ONE WHO NEITHER TOOK LIFE, AT-

TEMPTED TO TAKE LIFE, NOR IN-

TENDED TO TAKE LIFE ............--+++++- 7

| Eo. ccccccccccecscccsccecaceccsesece 7

B. Petitioner's Sentence of Death Is Grossly

Disproportionate to the Seriousness of His

EA err rre rere Try Tey ety 10

1. In view of the nature and degree of

petitioner’s participation in the offense

for which he stands condemned, the

death penalty here is as disproportion-

ately severe as the one invalidated in

Coker v. Geert ...cccscccccccccccccees 10

2. In view of the objective indicia of

society’s contemporary rejection of

death as a punishment for merely

accessorial liability in an unintentional

felony-murder, petitioner’s sentence is

disproportionately severe ...........++50+: 16

Il.

(iii)

a. History and traditional

PR icccudecccsdendasssceneswancss

b. Contemporary legislative judg-

PEE“ cnceasucciccecectccecnsesens

c. Jury determinations .................

By SI odin ceidadedcccdsdsccccscesen

C. Death Is a Purposeless and Excessive

Punishment for Vicarious Liability in an

Unintentional Felony-Murder Because it

Makes No Measurable Contribution to the

Acceptable Goals of Punishment ............

1. Imposing the death penalty for un-

intended homicides committed by

others during the course of felonies

does not measurably increase the likeli-

hood that such homicides will not

f | 3 errr

2. Retributive justice is not measurably

served by punishing unintentional

felony-homicides with death .............

I A a i eet lad

PETITIONER’S DEGREE OF PARTICI-

PATION IN THE KILLINGS WAS GIVEN

INADEQUATE CONSIDERATION AND

INADEQUATE WEIGHT BY THE

FLORIDA COURTS, THEREBY VIOLA-

TING HIS RIGHTS UNDER THE

EIGHTH AND FOURTEENTH AMEND-

PETE coccescesovcecsecescosssvceseosesenes

A. The Trial Court and the Florida Supreme

Court Refused to Consider as an Indepen-

dent Mitigating Circumstance Earl

Enmund’s Lack of Participation in the

Killings and Total Absence of Homicidal

TEE cuuceccsacducececesthendasncatnasases

(iv)

B. The Trial Court and the Florida Supreme

Failed to Engage in Any Precise, Con-

sistent Fact-finding, Supported by the

Record, as to the Extent of Earl Enmund’s

Participation in the Killing and Whether

that Degree of Participation Merits Im-

position of a Sentence of Death ............ 49

C. The Execution of Earl Enmund upon this

Record Would Constitute Excessive and

Disproportionate Punishment ................ 55

REITER ERENT ES nC EERIE AREER OT OEE 57

APPENDIX A. (Deleted. Not printed.)

APPENDIX B. Statutory Provisions Involved ......... lb

APPENDIX C. Commutations of Felony-Murder

Death Sentences Imposed on

Accomplices Who Neither Took

Life Nor Intended to Take Life ...... Ic

APPENDIX D. Survey of Persons Executed in the

United States Since 1954 ........... Id

APPENDIX E. Survey of Persons Presently Under

Active Sentence of Death ............ le

(See separate xerox copy)

TABLE OF AUTHORITIES

Cases: Page

Adams v. State,

341 So.2d 765 (Fla. 1976) ...............e00- 11,12,13

American Communications Ass'n v. Douds,

I a 44

Armstrong v. State,

en 4

Barfield v. State,

GES Sa: 26 S77 Ge. 1GG4) .... ccccccccccccsccccess 14

(v)

Beck v. Alabama,

Pe WN PCED cncccccccccccccccccceccces 44,54

Clark v. Commonwealth,

257 S.E. 2d 784 (Va. 1979) ©0000. 37

Coker v. Georgia,

OD voducueccccceccccecsceccc passim

Commonwealth ex rel. Smith v. Myers,

438 Pa. 218, 261 A.2d 550 (1970) ................. 18

Dennis v. United States,

341 U.S. 494 (1951) ............... huisecnanasneay 17

Eberhart v. Georgia,

CP COED eccvccccescemecccocsececescce 15

Elledge v. State,

346 So. 2d 998 (Fla. 1977) ...... 0.00... c eee eee. 48

Enmund vy. State,

399 So. 2d 1362 (Fla. 1981)................... passim

Ex parte Ritter, »

375 So. 2d 270 (Ala. 1979) ..... 0.0. cece cece eee 32

Fisher v. United States,

Bee We SE GUO ovcccccccccccccccccccccces 21,41

Fritz v. State,

8 Okla. Cr. 342, 128 Pac. 170 (1917) .............. 24

Furman v. Georgia,

ited ade ee ee eile passim

Gardner v. Florida,

430 U.S. 349 (1977) ....... nee Gieeebemneeene 11,44,51

Godfrey v. Georgia,

446 U.S. 420 (1980) ....... 0.0 43,56

Green v. Georgia,

eee eee 46,54

Gregg v. Georgia,

2 ESS a eee ear passim

Gregg v. State,

233 Ga. 117, 210 S.E. 2A 659 (1974) .............. 15

(vi)

Hall v. State,

244 S.E. 2d 833 (Ga. 1978) ......... cece cece eee 37

Hampton v. State,

336 So. 2d 378 (Fia. App. 1976) ..............2005. 13

Hill v. State,

Be ee COE Gs COED ccccccecccccccessccceses 37

Jacobs v. State,

Se SEE, GED cavccccccecccccesesscoses 56

Jarrell v. State,

216 S.E.2d 258 (Ga. 1975)...... ineuadaui deters 37

Jurek v. Texas,

ED ccnccdccuacestdnieseseeseguee 55

Justus v. State,

ph, PEED occcccccecscoccosceseses 37

Lockett v. Ohio,

SE ED. ccccéncdascecesnceccénens passim

Louisiana ex rel. Francis v. Resweber,

ie cccessadanessusoasceueseues 18,25

Mahaun v. State,

Be ek Be Sy SE cc ccccccccccccccccevecss 12

Malloy v. State,

BE ee CUES BO FER cc ncvccccgesccceucesces 56

McCaskill v. State,

344 So. 2d 1276 Gite. 1977)... ccccccccccccccess 56

McGautha v. California,

DEED enccccccsedcssedecéssesene 21,23

Morissette v. United States,

DEC ED ceucecdetccecedsossessas 17.39.42

Mullaney v. Wilbur,

St IEEE vocccdcdacecusesvsacesse 21.43.44

O'Neil v. Vermont,

DP PEE « ccvcccnneuducscsecsessecasas 10,43

People v. Davis,

43 N.Y.2d 17, 400 N.Y.S.2d 735 (1977) ............ 28

(vii)

People v. Glecker,

411 N.E.2d 849 (Ill. 1980) ....................04.. 37

People v. Washington,

62 Cal. 2d 777, 402 P.2d 130 (1965) ............... 18

Pope v. State,

ME ac oi pacccedevasdacdosconsess 13

Powell v. Texas,

A EE vodeudcucousesensssesesencees 11

Powers v. Kentucky,

110 Ky. 386, 61 S.W. 735 (1901) .................. 19

Proffitt v. Florida,

Se MD cccceduccosencedsosenesons 50,53

Harry Roberts v. Louisiana,

IE <0 nnccceccesdasisedesususeses 9,16

Stanislaus Roberts v. Louisiana,

POE <hedudcnsuscoseecessscesexe 14,53

Robinson v. California,

PEED hc éeucceccscescussssecescucssd 43

Rummel v. Estelle,

SP PED dcadcuvdcuececonscesases 11,42,44

Schware v. Board of Bar Examiners,

En 48

Slater v. State,

ee Be A SED och cccscccccvedecccesess 55

Smith v. California,

Se PEE e-cnccvndesencsecsesedesdekecse 44

Smith v. State,

__. $o.2d ____, No. 56,005 (Fla. July 16, 1981) .... 56

State v. Cherry,

Be Cee SE Cee BOUED ccccccccecvecccccccesse 29

State v. Dixon,

ee ee ED vbddcsédddeddeaenecenseus 11,56

State v. Groseclose,

615 S.W.2d 142 (Tenn. 1981) ....................5. 37

(viii)

State v. Hall,

176 Neb. 295, 125 N.W.2d 918 ees 24

State v. Irwin,

282 S.E.2d 439 (N.C. 1981) ...............000005-. 37

State v. Pinder,

375 So. 2d 836 (Fla. 1979) .............ccccccccee, la

State v. Rust,

250 N.W.2d 867 (Neb. 1977) ..................... 37

State v. Shaw,

255 S.E.2d 799 (S.C. 1979) ... 00... cece cece eee. 37

State v. Sonnier,

—— So. 2d ___, No. 80-K-1846 (La. June 22,

Melbheehunukicdinidanscdeussddédéestanead een. 37

Taylor v. State,

294 So. 2d 648 (Fla. 1974) .................. sameus 55

Trop v. Dulles,

I 9,33

United States v. Freed,

eee 17

United States v. United States Gypsum Co.,

RR ae ne: 17,44

United States v. Yellow Cab Co.,

I 44

Village of Arlington Heights v. Metropolitan Housing Develop-

ment Corp.,

| eer ai 44

Wallace v. State,

618 S.W.2d 67 (Tex. Crim. App. 1981) .............. 37

Warren v. State,

562 S.W.2d 475 (Tex. Crim. App. kaudinswescade 37

Weems v. United States,

217 U.S. 349 (1910) ... 00.0 eee cece ee. 11,43,55

Wesley v. State,

112 Neb. 360, 199 N.W. 719 (1924) ............... 24

(ix)

Williams v. New York,

PD oc ces onidecdnvesecensaaenee 25,38

Williams v. State,

ee EE, WUD oi n40ss once tsaseuchaees 56

Witherspoon v. Illinois,

DED crcugueusscnenacesoseeenes 33,36

Woodson vy. North Carolina,

Ge Sh PUTED ccecvcnsecesccsesccccceose passim

Statutes:

RSE once Nee Cc lucedeuen canescens Remann 28,30

occ scpccackeeaecaueueneueenveney 30

ee rn cae cavauaseecesaeeseueseseNdent 28

Ss SED cn caccnuscuscesavscuacuneaeoud 29

Ss CEES | Sanceccceseéeeccchssate 29,30,32

Cal. Penal Code § 189 (West Supp. 1980) .............. 30

Cal. Penal Code §190.2 (West Supp. 1980) ............ 30

Colo. Rev. Stat. Ann. §16-11-103 ..................45. 30

Conn. Gen. Stat. Ann. §53a-54b (West Supp. 1980) ..... 30

Del. Code, Tit. 11, §636 (1981 Supp.) ................. 28

ee ee ee ED ccuccccdugescecesseeneseees 3,4,11

nD 2. cccctcoaceeteencessasoeuceus la

Ey vecvaukacecvccesesaceeeee passim

Ga. Code Ann. § 26-1101 (Supp. 1980) ................. 30

Ga. Code Ann. §27-2534.1 (Supp. 1980) .............. 30

cated suncdeneeceeseseeceseeut 29

Ill. Rev. Stat. ch. 38 §9-1 (1978) .................0005. 29

i ee, ND ng denccccevconceccesessves 29

Baldwin’s Ky. Rev. Stat. §5/)7.020 ................4... 28

La. Crim. Code Ann. § 14.30 (1981) ...............04.. 28

Md. Crim Law Code Ann. §413 ........... cc ceeeeeeee 29

(x)

Miss. Code Ann. §97-3-19 (Supp. 1979) ............... 30

Miss. Code Ann. §99-19-101 (Supp. 1979) ............. 30

Mo. Rev. Stat. §565.001 (Supp. 1981) ................. 28

Mo. Rev. Stat. §565.008 (Supp. 1981) ................. 28

Mo. Rev. Stat. §565.012 (Supp. 1981) ................. 29

Mont. Rev. Code Ann. §46-18-303 (1979) ............. 29

Neb. Rev. Stat. §29-2523 (Supp. 1979) ................ 29

Nev. Rev. Stat. §200.030 (1979) ................00 eee. 30

Nev. Rev. Stat. $200,033 (1979) ....cccccccccccccccces 30

N.H. Rev. Stat. Ann. §630.1 (Supp. 1979) ............. 28

Se I, CRUD ica ccccscsnunccsccbhucesese 29

Pe EME ciccnccccececctedsncecececncess 25

N.Y. Penal Law §125.27 (McKinney Supp. 1980) ....... 28

ee a I, SE 050s cc ccéccncencokeuséscevaceees 29

es Gs CE DEED 0 pecccevonececcescesesasss 29

Baldwin’s Ohio Legisl. Serv. 1981, 5-163, §2929.04 .... 30

Baldwin’s Ohio Legisl. Serv. 1981, 5-165, §2903.01 ..... 28

5 FF % § | & 5 Beer rr rrree 29

18 Pa. Cons. Stat. Ann. §1102 (Purdon’s 1981) ......... 28

S.C. Code § 16-3-10 (Supp. 1980) .................44.- 30

S.C. Code § 16-3-20 (Supp. 1980) .................048- 30

S.D. Comp. Laws §23A-28-1 (Supp. 1980) ............. 29

Tenn. Code Ann. § 39-2402 (Supp. 1980) .............. 30

Tenn. Code Ann. § 2404 (Supp. 1980) ................. 30

Se, GD GRO, TEU ce cccccccosoccccssceccess 28

, MED cies cue ccedvencetessgscesseuesdes 2

i Me cc cucel ouCeucettesneueusseuennedes 29

I GED, SUED no cc ccconcecceccccectccencs 28

Va. Code Ann. §18.2-18 (1981 Cum. Supp.) ............ 30

Se Es SE eSdcdaccSancdacecacssectscobss 28

ey HL Ss BE ED Sccedccccscecccccecccess 30

Wash. Legisl. Serv. 1981, No. 3, ch. 138, §2 ........... 28

Wash. Rev. Code Ann. §9A.32.030 ................... 28

Wyo. Stat. Ann. §6-4-101 (Supp. 1980) ................ 30

Wyo. Stat. Ann. §6-4-102 (Supp. 1980) ................ 30

Foreign Statutes:

English Homicide Act of 1957, 5&6 Eliz. 2,c. 11 ....... 21

English Murder Act of 1965, 8 Halisbury’s Stat. of

clit pe acekeetaabetnsed Reeds dhe ones nes 21

Indian Penal Code § §299-300 ................ccceeees 32

Other Authorities:

Alderstein, Felony Murder: A Statutory Taxonomy, 4

AM. J. CRIM. L. 249 (1975-76) ........ccccccccees 22

ALI, MODEL PENAL CODE §210.2 (Official

Draft and Revised Comments 1980) ............ passim

Barnett, The Grounds of Pardon, 17 J. CRIM. L.

CRIM. & POL. SCI. 490 (1927) ................... 26

BOWERS, W., EXECUTIONS IN AMERICA (1974) .. 34

BRADFORD, W., AN INQUIRY HOW FAR THE

PUNISHMENT OF DEATH IS NECESSARY

IN PENNSYLVANIA (1792) ........ccccccssccecs 22

Browning, Hon. James R., The New Death Penalty

Statutes: Perpetrating A Costly Myth,9 GONZ. L.

St nic gade tek cebnege sectueeuset ces 40

CALABRESI, G., THE COST OF ACCIDENTS: A

LEGAL AND ECONOMIC ANALYSIS (1970) .... 39

CHARTER TO WILLIAM PENN AND LAWS OF

THE PROVINCE OF PENNSYLVANIA (1879) ... 21

Dressler, The Jurisprudence of Death by Another:

Accessories and Capital Punishment, 51 COLO.

Rg CP Jébcdbuudeedeeseucdesnneeeessus 34

(xii)

GOLDSTEIN, A., THE INSANITY DEFENSE (1967) .39

Hall, Negligent Behavior Should Be Excluded from

Penal Liability, 63 COLUM. L. REV. 632 (1963) ....39

Hall, Reduction of Criminal Sentences on Appeal, 37

SY Mie ME SEE GPE oc cocccccccccccccceces 24

Hart, Henry M., The Aims of the Criminal Law, 23 L.

& CONTEMP. PROB. 401 (1958) .................. 39

Hart, H.L.A., Murder and Its Punishment: England

and The United States, 52 NW. U.L. REV. 433

EUMEE seenegesdecusbestaveusceccesesacecousseon sd 40

HART, H.L.A., PUNISHMENT AND RESPON-

EE. ccc ee gcesencesennedasekeeseed 43-44

HOLMES, O. Jr., THE COMMON LAW (1881) ........ 18

HUNARD, M., THE KING’S PARDON BEFORE

St SE i ndvedsdncsadeaudcsanssadeneseeen 20

Hurst, Criminal Law: The Felony Murder Doctrine

Repudiated, 36 KY. L. REV. 106 (1946) ............. 18

Johnson, Selective Forces in Capital Punishment, 36

ie PUY GP CEDED cccccccccccescccccccaces 26

4 JOURNAL OF THE SENATE (Pa. 1794) ............ 22

Kalven & Zeisel, The American Jury and the Death

Penalty, 33 U. CHI. L. REV. 769 (1966), reprinted

inH. KALVEN & H. ZEISEL, THE AMERICAN

ST EE 6 dds be n6db6006Rs6ebnseenssoes 33

Keedy, History of the Pennsylvania Statute Creating

Degrees Of Murder, 97 U. PA. L. REV. 759 (1949) ...21

KENNEY, OUTLINES OF THE CRIMINAL LAW

GRUUD Sa ceccncgesaccedccsdscssccccccescoesssocesa 23

LAW REVISION COMMISSION OF THE STATE

OF NEW YORK, SECOND ANNUAL REPORT

GUE 005.0060 cenenisncdesnedsccccnscadcncesecscns 23

LAW REVISION COMMISSION OF THE STATE

OF NEW YORK, THIRD ANNUAL REPORT

GENTE cedancaccscnceadscvesecseqccccnceescseeses 24

(xiii)

Ludwig, Foreseeable Death In Felony Murder, 18 U.

Ss ie EE ED 6 vic coca ddavuasuseeeesuss 25

McCafferty, Major Trends in the Use of Capital

Punishment, 1 AMER. CRIM. L.Q., No. 2 (1964) ... 21

Morris, Felon’s Responsibility for Acts of Others, 105

he EE in 6 cea cegbudaneudeeewes 40

NAACP LEGAL DEFENSE AND EDUCA-

TIONAL FUND, INC., DEATH ROW U.S.A.

SD CDs cc ccnguweencectauaeeeunenncecs 35

Note, Executive Clemency in Capital Cases, 39

Ps Ms SEP cc ccccctcceunscensocsees 26

Note, The Two-Trial System in Capital Cases, 39

es Ss SPEED «cn ccuccceeseucteueeceeas 23

PACKER, H., THE LIMITS OF THE CRIMINAL

TEED «cc ccaveceseeeesaececeseecsees 39

PERKINS, R., THE CRIMINAL LAW (1969) ......... 19

PRESIDENT’S COMMISSION ON LAW EN-

FORCEMENT & ADMINISTRATION OF

JUSTICE, REPORT: THE CHALLENGE OF

CRIME IN A FREE SOCIETY (1967) ............ 41

ROYAL COMMISSION ON CAPITAL PUNISH-

MENT 1949-1953, MINUTES OF EVIDENCE .... 20

ROYAL COMMISSION ON CAPITAL PUNISH-

MENT 1949-1953, REPORT ................. passim

Schulhofer, Harm and Punishment: A Critique of

Emphasis on the Results of Conduct in the Criminal

Law, 122 U. PA. L. REV. 1497 (1974) ............. 40

SMITHERS, W., TREATISE ON EXECUTIVE

CLEMENCY IN PENNSYLVANIA (1909) ........ 26

3 STEPHEN, J., A HISTORY OF THE CRIMINAL

LAW OF ENGLAND (1883) ................55. 20,21

STROUD, F., MENS REA (1914) .............0000055 18

Turner, The Mental Element in Crimes at Criminal

Be, © Gee Gate BE COED ccccccccccccccseseses 18

(xiv)

UNITED STATES DEPARTMENT OF JUSTICE,

LAW ENFORCEMENT ASSISTANCE AD-

MINISTRATION, NATIONAL PRISONER

STATISTICS BULLETIN, No. SD-NPS-CP-3,

Capital Punishment 1974 (November 1975) .......... 35

3 UNITED STATES DEPARTMENT OF JUSTICE,

SURVEY OF RELEASE PROCEDURES,

PORE SU GUUEED ch ccccecccdvsccteccvesecceces 26

Wechsler, Degrees of Murder and Related Aspects of

the Penal Law of the United States, in ROYAL

COMMISSION ON CAPITAL PUNISHMENT

1949-1953, MINUTES OF EVIDENCE 784 ... passim

Wechsler & Michael, A Rationale of the Law of

Homicide, 37 COLUM. L. REV. 1261 (1937) ....... 20

WILLIAMS, G., CRIMINAL LAW: THE GEN-

ee PUES COONS) ccceseccccvcescoveseccccesees 39

Wolfgang, Kelly & Nolde, Comparison of the Executed

and Commuted Among Admissions to Death Row,

53 J. CRIM. L. CRIM. & POL. SCI. 301 (1953) .... 26

Wyndam, Constructive Murder and Felonious Intent,

34 L. MAGAZINE & REV. 461 (1902) ............ 20

No. 81-5321

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1981

EARL ENMUND,

Petitioner,

against

STATE OF FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Supreme Court of Florida affirming

petitioner’s convictions of first-degree murder and sentences

of death by electrocution is reported in Enmund v. State, 399

So. 2d 1362 (Fla. 1981); A. 34-56.' The judgment and

findings of fact on sentencing of the Circuit Court of Hardee

County, Florida are unreported and appear at A. 25-26, 29-

33.

JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C.

§ 1257(3), the petitioner having asserted below and asserting

here a deprivation of rights secured by the Constitution of the

United States.

The judgment of the Supreme Court of Florida was entered

on April 16, 1981. A timely petition for rehearing was denied

by that court on July 20, 1981. The petition for certiorari was

filed on August 25, 1981, and granted on October 19, 1981.

___._ U.S. ____, 50 U.S.L.W. 3300 (U.S.).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Eighth Amendment to the Constitu-

tion of the United States, which provides:

Excessive bail shall not be required nor excessive fines

imposed, nor cruel and unusual punishments inflicted . .

‘Numbers preceded by “A.” refer to pages of the Joint Appendix;

numbers preceded by “R.”’ refer to transcript pages not reproduced in the

Joint Appendix; numbers preceded by “S.R.”’ refer to pages in the

supplemental record on appeal not reproduced in the Joint Appendix.

and the Fourteenth Amendment to the Constitution of the

United States, which provides, in pertinent part:

[Nor shall any State deprive any person of life, liberty,

or property without due process of law.

This case also involves the following provisions of the

statutes of the State of Florida, which are set forth in

Appendix B to this brief: Fla. Stat. Ann. § §782.04,

921.141.

STATEMENT OF THE CASE

On April 1, 1975, Thomas and Eunice Kersey were

robbed at their farmhouse in central Florida. R. 1084-85. In

an exchange of gunfire that left one of the robbers wounded,

Mr. and Mrs. Kersey were fatally shot. R. 1102, 1106. A

Hardee County grand jury subsequently indicted Sampson

Armstrong, his wife, Jeanette Armstrong, and petitioner Earl

Enmund, a forty-three-year old black farmer, for the first-

degree murder and robbery of the Kerseys. A. 1-3; R. 1467-

70.

As the case comes to this Court, the Supreme Court of

Florida has sustained petitioner Earl Enmund’s sentence of

death on findings: (i) that “the only evidence”’ linking

him to the homicides is the “inference”’ that he was in a car

200 yards (R. 1037) from the Kerseys’ home when his

confederates in a robbery plan, the Armstrongs, killed the

Kerseys (A. 49-50; Enmund v. State, 399 So. 2d 1362,

1370 (Fla. 1981));? and (ii) that “the killings were spon-

*Sampson Armstrong admitted to two witnesses who testified at trial that

he and Jeanette Armstrong actually “pulled” the robbery (R. 3, 1207-08,

1347-52), and that he killed the Kerseys (R. 1207-08, 1347-52, 1354).

taneous and were precipitated by the armed resistance of

Mrs. Kersey,” who initiated the gun battle by shooting

Jeanette Armstrong (Armstrong v. State, 399 So. 2d 953,

963 (Fla. 1981)°). The Florida Supreme Court held that

these findings would support a sentence of death under “‘the

felony murder portion of [Fla. Stat. Ann.] section

782.04(1)(a)” (A. 50; 399 So. 2d at 1370), although “‘the

evidence does aot establish that [petitioner] . . . intended to

take life” (A. 51; 399 So. 2d at 1371).

In view of the Florida Supreme Court’s explicit findings

and conclusions, a detailed statement of the facts and

proceedings below is unnecessary for consideration of the

primary issue presented herein (Point I, infra)—whether

petitioner’s sentence of death is constitutionally excessive

and disproportionate for an offense in which he neither took

life nor intended or attempted to take life. Aspects of the

proceedings below relevant to the second question presented

(Point II, infra)—whether the Florida counts gave inadequate

consideration and inadequate weight to petitioner’s degree of

participation in the Kersey killings—are developed within

Point II.

SUMMARY OF THE ARGUMENT

Petitioner Earl Enmund was sentenced to die although he

did not himself take life, intend to take life, or contemplate

‘Sampson Armstrong and petitioner were jointly tried, and were convicted

and sentenced to die on the same evidence. In affirming petitioner's

sentence of death, the Florida Supreme Court incorporated by reference

parts of its earlier decision affirming Sampson Armstrong’s sentence,

including the statement quoted above. A. 55; 399 Sc. 2d at 1373,

incorporating Armstrong v. State, supra, 399 So. 2d at 963.

that it would be taken by another. The State of Florida based

that punishment exclusively on petitioner’s “constructive”

participation in a robbery during the course of which a

confederate took life as the “spontaneous” result of gunfire

initiated by one of the robbery victims.

In light of Earl Enmund’s lack of personal responsibility for

homicide, his sentence of death is unconstitutionally excessive

and disproportionate under the Eighth and Fourteenth

Amendments.

First, petitioner’s individual culpability—the touchstone of

a constitutional administration of the death penalty under the

Court’s recent Eighth Amendment jurisprudence—is no

different than that of any accomplice to a non-homicidal

felony. Certainly, it is no greater than that of the principal

participant in a serious felony short of homicide, on whom the

death penalty may not constitutionally be inflicted. Coker v.

Georgia, 433 U.S. 584 (1977). Because there is no rational

way to distinguish Earl Enmund from any other participant in

a non-homicidal felony based on what each did and intended,

or on the risk of death created by each, the fact that identical

risks fortuitously result in death in one case, but not in the

other, cannot provide grounds for allowing Earl Enmund to

be executed while forbidding such punishment for other non-

homicidal felons.

This conclusion is further compelled by contemporary

society’s almost total rejection of death as an appropriate

punishment for an accomplice to robbery who did not take life

or intend that it be taken by another. During the past two

centuries, and with progressively greater unanimity over the

last decade, the agencies charged with making and enforcing

the criminal laws—legislators and judges, clemency execu-

tives and jurors—have manifested an unwillingness to inflict

the extreme punishment in the absence of some action or

intention on the defendant’s part directed at taking life.

Finally, punishing Earl Enmund with death for the results

of the homicidal actions of another has neither deterrent

efficacy nor any retributive justification in the absence of an

intention on petitioner’s part that such homicidal results come

to pass.

Both the trial court and the Florida Supreme Court took

inadequate account of petitioner’s degree of participation in

the crime for which he was sentenced to death, in violation of

his rights under the Eighth and Fourteenth Amendments.

First, the Florida courts did not even consider petitioner’s

degree of participation in the killings and lack of intent to kill

as independent mitigating circumstances as required by

Lockett v. Ohio,438 U.S. 586 (1978). Second, the fact-

finding process that underlies petitioner’s death sentence did

not afford him the reliable inquiry into the extent of his

culpability and the reasoned determination as to why he

should be executed for his role in the crime that is consti-

tutionally demanded in order to support a decision to inflict

society’s most extreme punishment. Third, the Florida courts

consigned petitioner to death even though there were no

aggravating factors sufficient to outweigh the overwhelming

mitigating force of his lack of intent to kill, thereby subjecting

petitioner to a sentence which is palpably excessive and dis-

proportionate punishment, particularly by contrast to

Florida’s treatment of other cases involving accessorial

liability.

ARGUMENT

I. DEATH IS AN UNCONSTITU-

TIONALLY EXCESSIVE AND DIS-

PROPORTIONATE PENALTY UN-

DER THE EIGHTH AND FOUR-

TEENTH AMENDMENTS FOR ONE

WHO NEITHER TOOK LIFE, AT-

TEMPTED TO TAKE LIFE, NOR IN-

TENDED TO TAKE LIFE

A. Introduction

As part of its comprehensive review of the constitutionality

of capital punishment, the prevailing opinion in Gregg v.

Georgia, 428 U.S. 153 (1976), undertook to “consider

whether the punishment of death is disproportionate in

relation to the crime for which it is imposed.” Jd. at 187.

Considering that Eighth Amendment question “only with

[regard to] the crime of murder, and when a life has been

taken deliberately by the offender,” the plurality was unable

to conclude that “the punishment is invariably disporportion-

ate to the crime.” Jd. (emphasis added). “It is an extreme

sanction, suitable to the most extreme of crimes.” Jd.

In Coker v. Georgia, 433 U.S. 584 (1977), the Court

considered the constitutionality of the death penalty for

another “highly reprehensible” though less extreme offense.

Id. at 597 (plurality opinion). It held that “‘a sentence of death

is grossly disproportionate and excessive punishment for the

crime of rape and is therefore forbidden by the Eighth

Amendment as cruel and unusual punishment.” Jd. at 592.

Woodson v. North Carolina, 428 U.S. 280 (1976),

presented an issue falling between Gregg and Coker. Woodson

had participated in a robbery during which a codefendant

took the victim’s life. Woodson’s personal culpability was

thus indistinguishable from Coker’s in terms of what he had

done or intended, or the risks created by his conduct; but

because those risks had happened to materialize, the con-

sequences of the robbery in which he had engaged included

the death of a human being and, to that extent, resembled

Gregg’s. Identifying the resulting constitutional question as

“whether imposition of the death penalty on petitioner

Woodson would have been so disproportionate to the nature

of his involvement in the capital offense as . . . to violate the

Eighth and Fourteenth Amendment,” 428 USS. at 305 2.40

(plurality opinion) (emphasis added), the Court found it

“unnecessary to reach [that]. . . question,” id. Again in

Lockett v. Ohio, 438 U.S. 586 (1978), the Court withheld

decision on whether “the death penalty is constitutionally

disproportionate for [an accessory in a robbery-murder] . . .

who has not been proved to have taken life, to have attempted

to take life, or to have intended to take life.””* Id. at 609 n.16

(plurality opinion).

Petitioner’s case once again presents the issue reserved in

Woodson and Lockett: specifically, whether the State of

Florida may constitutionally take Earl Enmund’s life for an

offense in which he neither took, attempted to take, nor

intended to take, anyone’s life. We address that issue in the

remainder of this Point I from several perspectives developed

by the Court’s recent Eighth Amendment decisions. But the

See also Coker v. Georgia, supra, 433 U.S. at 592, citing Gregg v.

Georgia, supra, 428 U.S. at 187 n.35; “In Gregg . . . the Court's judgment

was that the death penalty for deliberate murder was neither the purpose-

less imposition of severe punishment nor a punishment grossly dispro-

portionate to the crime. But the Court reserved the question of the

constitutionality of the death penalty when imposed for other crimes.”

essence of our submission is simple, and bears statement at

the outset:

From the point of view of his individual and personal

culpability—what he did and what he intended—Earl Enmund

is not rationally differentiable from Ehrlich Coker. His

deliberate conduct created no greater danger of death to

others than did Coker’s. Fortuitiously, death of others did

occur here, not in Coker’s case. The question is whether that

fortuity makes a constitutionally decisive difference.

We submit that it does not, and cannot, in the light of the

consistent emphasis upon individual culpability—upon the

characteristics of the particular offense and offender—that

has animated this Court’s entire Eighth Amendment juris-

prudence of capital punishment since 1972. See, e.g., Harry

Roberts v. Louisiana, 431 U.S. 633 (1977); Lockett v. Ohio,

supra. Once it is recognized that the Eighth Amendment

forbids the treatment of “‘all persons convicted of a designated

offense not as uniquely individual human beings, but as

members of a faceless, undifferentiated mass,” Woodson v.

North Carolina, supra, 428 U.S. at 304 (plurality opinion),

then Earl Enmund’s technical guilt of first-degree murder by

virtue of the interaction of the felony-murder rule and legal

doctrines of accessorial liability can no longer warrant

classing him among the Greggs, rather than admitting his

factual identity with Ehrlich Coker, for purposes of the

Constitution’s prohibition of disproportionate and excessive

punishment. To distinguish Enmund from Coker upon

grounds that have no bearing on the individual culpability and

fitness for punishment of each would trivialize the Eighth

Amendment by a “dialectic . . . empty of reason,” Trop v.

Dulles, 356 U.S. 86, 125 (1958) (Justice Frankfurter,

dissenting).

Under the Eighth and Fourteenth Amendments, as inter-

preted in Gregg and Coker, “‘a punishment is ‘excessive’ and

unconstitutional if it (1) makes no measurable contribution to

acceptable goals of punishment and hence is nothing more

than the purposeless and needless imposition of pain and

suffering; or (2) is grossly out of proportion to the severity of

the crime.” Coker v. Georgia, supra, 433 U.S. at 592.

Accord, Gregg v. Georgia, supra, 428 U.S. at 173. “A

punishment might fail the test on either ground,” Coker v.

Georgia, supra, 433 U.S. at 592, or as the “cumulative”

result of a poor showing on both, Furman v. Georgia, 408

U.S. 238, 282 (1972) (Justice Brennan, concurring).

We show below that, under either test, the uniquely severe

penalty of death is disproportionate and excessive punish-

ment for an offense which, despite its seriousness, is simply

not among “the most extreme of crimes.” Gregg v. Georgia,

supra, 428 U.S. at 187.

B. Petitioner’s Sentence of Death Is Grossly

Disproportionate to the Seriousness of His

Crime

1. In view of the nature and degree of peti-

tioner’s participation in the offense for

which he stands condemned, the death

penalty here is as disproportionately severe

as the one invalidated in Coker v. Georgia

The Cruel and Unusual Punishment Clause of the Eighth

Amendment is in part directed “ ‘against . . . punishments

which by their excessive . . . severity are greatly dis-

proportioned to the offense charged.’”’ Weems v. United

States, 217 U.S. 349, 371 (1910), quoting O'Neil v.

Vermont, 144 U.S. 323, 339-40 (1892) (Justice Field,

dissenting). See Rummel v. Estelle, 445 U.S. 263, 271-77

(1980) (citing cases). Accordingly, “[a]lthough determining

the range of available punishments for a particular crime is a

legislative function, the very presence of the Cruel and

Unusual Punishment Clause within the Bill of Rights

requires . . . that courts decide whether particular”

punishments authorized by a legislature fall afoul of this

requirement of proportionality. Furman vy. Georgia, supra,

408 U.S. at 433 (Justice Powell, dissenting).

Disproportionality analysis gauges the fitness of the

penalty and “the nature of the conduct made criminal.”

Powell v. Texas, 392 U.S. 514, 531-32 (1968). Because

“[t]here is no question that death as a punishment is unique

in its severity and irrevocability,” Gregg v. Georgia, supra,

428 U.S. at 187,° the Court has said that the death penalty

demands more “considerate adaptation . . . to the degree of

the crime’’® than do other sanctions. Rummel v. Estelle,

supra, 445 U.S. at 272, 275; see Gregg v. Georgia, supra,

428 U.S. at 187. Accordingly, it is essential to identify

precisely the conduct for which petitioner Earl Eumund is

being punished, in order to measure its fitness for the unique

penalty of death.

Petitioner was convicted and sentenced to die under the

felony-murder and accessorial-liability principles of Fla.

Stat. Ann. §782.04(1)(a), as construed by the Supreme

Court of Florida in State v. Dixon, 283 So. 2d 1, i1 (Fla.

1973), and Adams v. State, 341 So. 2d 765, 768-69 (Fla.

1976). A. 45-48; R. 1553. Those principles “allow for a

‘Accord, e.g., Rummel v. Estelle, supra, 445 U.S. at 263,272; Gardner

v. Florida, 430 U.S. 349, 357-58 (1977) (plurality opinion); Woodson v.

North Carolina, supra, 428 U.S. at 305.

‘Weems v. United States, supra, 217 U.S. at 365.

particularly harsh application of the death penalty to any

defendant who has aided or abetted the commission of a. . .

robbery in the course of which a person is killed, even though

accidentally,” Lockett v. Ohio, supra, 438 U.S. at 613

(Justice Blackmun, concurring), through interaction of the

principal offender’s “‘strict’’’ liability for deaths occurring

during the perpetration of a felony, and the accomplice’s

“constructive”’® liability for the acts of the principal offender.

As the Supreme Court of Florida has described the first

branch of this interaction, the

felony murder rule mechanically defines as murder any

homicide committed while perpetrating or attempting to

perpetrate a felony. It stands as an exception to the

general rule that murder is homicide with the specific

intent of malice aforethought. Under the felony murder

rule, state of mind is immaterial. Even an accidentai

killing during a felony is murder. The malice afore-

thought is supplied by the felony, and in this manner the

rule is regarded as a constructive malice device.

Adams v. State, supra, 341 So. 2d at 767-68 (footnotes

omitted); accord, Mahaun v. State, 377 So. 2d 1158, 1160

(Fla. 1979).

The second step is to extend the principal felon’s re-

sponsibility for capital murder to all accomplices in the

felony by yet another “constructive . . . device”:

[A]n individual who personally kills another during the

perpetration or attempt to perpetrate one of the

enumerated felonies is guilty of first degree murder. . . .

™{T]he felony-murder rule . . . assigns strict liability for homicide

committed during the commission of a felony.” ALI, MODEL PENAL

CODE §210.2, Comment, at 15 (Official Draft and Revised Comments

1980) (hereinafter cited as “(1980)’’).

*See Pope v. State, 94 So. 865, 871 (1922).

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.

A. 46, quoting Adams v. State, supra, 341 So. 2d at 768.

Under these doctrines, it is immaterial that the homicide

occurred “accidentally” and was not “actually contem-

plated” by the felonious design in which the accomplices

shared. Hampton v. State, 336 So. 2d 378, 380 (Fla. App.

1976); see Pope v. State, 94 So. 865, 872 (1922). More-

over, the requirement that accomplices be “personally

present” is attenuated by a Florida rule that such “presence”

need not be “actual,” but is also constructively supplied, so

long as the accomplice was “sufficiently near and so situated

as to... encourage . . . the actual perpetrator.” A. 49; 399

So. 2d at 1370, quoting Pope v. State, supra, 94 So. at 871.

Only by virtue of “the unusual degree to which [these

doctrines] . . . require [ | capital punishment of a mere aider

and abettor in [a]. . . felony resulting in a fatality,” Lockett v.

Ohio, supra, 438 U.S. at 616 (Justice Blackmun, con-

curring), could and did the Supreme Court of Florida justify

its affirmance of petitioner’s death sentence. It did not

dispute his factual contention that “the evidence does not

establish that he intended to take life’ (A. 51), nor could it

have disputed that proposition on this record. For the record

establishes at worst that petitioner associated himself with a

plan “[t]o rob” Mr. and Mrs. Kersey,’ and sat “‘under the

SThe only evidence at trial concerning the scope of the felonious plan is in

Jay B. Neal’s description of his conversation with Sampson Armstrong:

Did Sampson tell you why he went out there?

Huh?

Did Sampson tell you why he went out there?

Why he went out there?

Yes, to begin with?

To rob them.

(R. 1351).

> OFA $A

wheel” of the getaway car “‘about 200 yards west of the

{Kerseys’] home” (R. 1037, 1039) while the robbery took

place. By Sampson Armstrong’s own admissions, it was

Sampson with “his old lady,’ Jeanette Armstrong, who

actually “‘pulled” the robbery (R. 3, 1348), and who shot

and killed both victims after Mrs. Kersey opened fire on

Jeanette (R. 1347-52, 1207-08). That the killings were no

part of the robbery plan is manifested by the Florida

Supreme Court’s description of them as “spontaneous” and

“precipitated by the armed resistance of Mrs. Kersey.”’'° A.

55; 399 So. 2d at 1373, incorporating Armstrong v. State,

supra, 399 So. 2d at 963. That petitioner took no part in

them is manifested by its finding that “‘the only evidence of

the degree of his participation is the jury’s likely inference

that he was the person in the car. . . near the scene of the

crimes” (A. 49), making him legally “‘a principal of the

second degree, constructively present aiding and abetting

[Sampson Armstrong’s] . .. commission of the . . . robbery”

during which Armstrong killed the Kerseys. A. 50."

At most, therefore, petitioner’s own conduct for which he

has been sentenced to be executed is his before- and after-

the-fact participation in the non-homicidal crime of robbery.

His “individual culpability”'* begins and ends there.

‘The jury was instructed to find petitioner guilty of first-degree murder,

regardless of whether or not “there was a premeditated design or intent to

kill,” if he was “engaged in the perpetration of robbery” during which life

was taken by “someone acting in consort [sic] with” him. A. 6, 8, 9.

"By the Supreme Court’s own definition of its terms, these findings

necessarily mean that petitioner did not commit either the robbery or the

homicide “with his own hands” (A. 47), and that he was not “actualfly]”

present during the commission of either offense. A. 49.

"*Stanislaus Roberts v. Louisiana, 428 U.S. 325, 333 (1976) (plurality

opinion), quoting Furman v. Georgia, supra, 408 U.S. at 402 (Chief

Justice Burger, dissenting).

Whether gauged by act or by intention, it is patently no

greater than Ehrlich Coker’s.

Coker and petitioner both committed serious felonies that

do not contemplate the taking of human life. Both thereby

created a risk — which in neither case was found to have

been deliberately incurred or even foreseen—that, by setting

in train a series of events, the death of another person might

result.'> Fortunately, in Coker’s case the risk did not

materialize. In petitioner’s case it did. That is the only

difference between them.

It is also the only difference between petitioner and any

other accessory to a robbery. They create the same risks of

harm to human life; but in only some cases do the risks come

to pass. Petitioner did nothing more than any other accessory

to make them come to pass. Surely, “that degree of respect

due the uniqueness of the individual!” which requires

“individualized consideration as a constitutional require-

ment in imposing the death sentence,” Lockett v. Ohio,

supra, 438 U.S. at 605, forbids the subjection of petitioner

alone to capital punishment by happenstance, when nothing

he has done or intended sets him apart from Coker or other

non-homicidal felons" in regard to “relevant facets of the

'43Coker not only threatened his victim and her husband with a knife, but

later held it to her throat before releasing her. See Coker v. Georgia,

supra, 433 U.S. at 587 (plurality opinion).

“In a per curiam opinion in Eberhart v. Georgia, 433 U.S. 917 (1977),

the Court followed Coker by summarily reversing death sentences for

kidnapping as well as rape. In Gregg, the Court noted that the Supreme

Court of Georgia had “effectively foreclosed” that State’s death penalty

for armed robbery because it was “ ‘excessive or disproportionate to the

penalties imposed in similar cases.’ ”” Gregg v. Georgia, 428 U.S. at 224

(opinion of Justice White); id. at 205-06 (plurality opinion), quoting

Gregg v. State, 233 Ga. 117, 127, 210 S.E.2d 659, 667 (1974).

character and record of the individual offender or the

circumstances of the particular offense,”” Woodson v. North

Carolina, supra, 428 U.S. at 304. The whole thrust of this

Court’s concern for a rational administration of capital

punishment that focuses upon the individual offender and his

offense as the basis for determining the appropriateness of a

death sentence’’ requires that, unless petitioner’s case can

be distinguished from Coker’s in dimensions relevant to

personal culpability, it cannot be constitutionally dis-

tinguished at all. And plainly, it cannot.

2. In view of the objective indicia of society’s

contemporary rejection of death as a

punishment for merely accessorial liability

in an unintentional felony-murder, pe-

titioner’s sentence is disproportionately

severe

The same conclusion is supported by “‘a careful inquiry

into [the] objective indicators of society’s ‘evolving

standards of decency’”’'® to which the Court looks in

assessing a punishment’s “contemporary”’’’ acceptability.

To these we next turn.

a. History and traditional usage

“*As advised by recent cases,” Coker v. Georgia, supra,

433 U.S. at 593, we seek guidance first in the “history and

SE g., Lockeit v. Ohio, supra, 438 U.S. at 601-05; Harry Roberts v.

Louisiana, supra, 431 U.S. at 636-37; Woodson v. North Carolina,

supra, 428 U.S. at 303-04; Gregg v. Georgia, supra, 428 U.S. at 189.

'6Coker v. Georgia, supra, 433 U.S. at 603 (Justice Powell, concurring).

"Gregg v. Georgia, supra, 428 U.S. at 173.

traditional usage”’ of capital punishment for accessories

convicted of unintended homicides under the felony-murder

rule. Woodson v. North Carolina, supra, 428 U.S. at 288.

We note at the outset that nothing in our submission

challenges the felony-murder rule itself, so long as it is not

used as the exclusive basis for inflicting capital punishment

upon a defendant who has neither killed nor intended death.

Nevertheless, to appreciate its significance when it is so

used, its background and highly artificial character in

general must be recognized.

The criminal law requirement “of a mens rea is the rule of,

rather than the exception to, the principles of Anglo-

American jurisprudence.” Dennis v. United States, 341

U.S. 494, 500 (1951) (opinion of Chief Justice Vinson).

“The contention that an injury can amount to a crime only

when inflicted by intention is no provincial or transient

notion. It is as universal and persistent in mature systems of

law as belief in freedom of the human will and a consequent

ability and duty of the normal individual to choose between

good and evil.”’ Morissette v. United States, 342 U.S. 246,

250 (1952). “‘Although Blackstone’s requisite ‘vicious will’

has been replaced by more sophisticated and less colorful

characterizations of the mental state required to support

criminality, . . . intent generally remains an indispensible

element of a criminal offense.” United States v. United

States Gypsum Co., 438 U.S. 422, 437 (1978). See also,

e.g., United States v. Freed, 401 U.S. 601, 607 (1971).

As has frequently been recognized, the felony-murder rule

and its attendant vicarious-liability doctrines are exceptions

to this “common law . . . scheme;” they “base [ ] conviction

of murder not on proven culpability with respect to homicide,

but on liability for another [and here another’s] crime.”’ ALI,

MODEL PENAL CODE §210.2, Comment, at 36

(1980).'* Although the rule itself remains widespread, “‘[t]he

traditional humanity of modern Anglo-American law’’’’ has

resulted over the past two centuries in an increasingly

concerted recognition on both sides of the Atlantic that its

employment to enhance a felon’s punishment through strict

liability for unintended deaths arising from his felony has no

validity where “the death penalty is authorized... .

Sanctions of such gravity demand justification, and their

imposition must be premised on the confluence of conduct

and culpability.” Jd. °

In England, where the felony-murder rule originated, its

marriage to the death penalty has frequently been described

as an accident of history.” At earliest common law, all

felonies except petty larceny were capital crimes, but neither

attempts nor accidental killings were punishable at all.

See also, e.g., People v. Washington, 62 Cal. 2d 777, 44 Cal. Rptr. 442,

402 P.2d 130, 134 (1965); Commonwealth ex rel. Smith v. Myers, 438

Pa. 218, 261 A.2d 550, 553 (1970).

97 ouisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947)

(plurality opinion).

°The drafters of the Model Penal Code are not the only authorities who,

in considering felony-murder, have distinguished death from all other

penalties imposed for the offense. See e.g., O. HOLMES, JR. THE

COMMON LAW 58 (1881) (noting the currency of the felony-murder

rule but taking comfort that “the law . . . does not nowadays often inflict

death in such cases”); F. STROUD, MENS REA 173 (1914); Turner,

The Mental Element in Crimes at Criminal Law, 6 CAMB. L.J. 31,65

(1936); Hurst, Criminal Law: The Felony Murder Doctrine Repudiated,

36 KY. L. REV. 106, 108-09 (1946). See also 3 J. STEPHEN, A

HISTORY OF THE CRIMINAL LAW OF ENGLAND 84 (1883).

"See generally, 3 J. STEPHEN, note 20, supra, at 57-58 (1883)

(pointing out that Coke’s importation of the capital felony-murder

doctrine into more recent English law was based on a misreading of

Bracton, since Bracton “did not say [felony-murder] was in his day

punishable with death’’).

When the feiony-murder rule arose, it served the single

purpose of allowing the same penaliy to be exacted for foiled

felonies resulting in accidental homicide as the law already

provided for all accomplished felonies, i.e., death.** Thus,

while bridging a gap in the substantive law of crimes, it

exposed the putative felon to no different dimension of

punishment than was commonplace, indeed accepted as

inevitable, for the felony he had attempted. Since “it was

immaterial whether a man was hanged for one felony or

another,”’”* the concept of transferred or constructive malice

had no seriously anomolous effect and it received little

attention until the death penalty was abolished for most non-

homicidal felonies in the 1830’s.** See generally, Woodson

v. North Carolina, supra, 428 U.S. at 289.

Even before the 1830’s—indeed, from the moment the

felony-murder rule was conceived—its effect was sub-

stantially dissipated by judge and jury nullification, as well

™R. PERKINS, THE CRIMINAL LAW 44 (1969).

Powers v. Kentucky, 110 Ky. 386, 413, 61 S.W. 735, 742 (1901).

*3 J. STEPHEN, note 20, supra, at 76 (1883).

as by royal pardon.** By 1953, the Royal Commission on

Capital Punishment could report that “in practice [the

felony-murder doctrine] . . . ha[d] been dead for many

years,” since its application “in effect [was] . . . limited to

cases where the proper verdict would be [intentional] . . .

murder even if there were no such [constructive malice]

doctrine.” And in 1957, Parliament culminated a long

history of legislative reform efforts by relegating unin-

SThis practical amelioration of the felony-murder doctrine through judge

and jury nullification began as early as the Fourteenth Century, M.

HUNARD, THE KING’S PARDON BEFORE A.D. 1307, at 98-99

(1969), and continued until the rule was legislatively abolished in 1957.

Thus, the historical literature is replete with examples of (i) English

judges inviting juries to convict of non-capital manslaughter, when a strict

application of the common law of felony-murder required capital-murder

verdicts, and, (ii) English juries, when not given that leeway by the judge,

simply acquitting guilty defendants. E.g., ALI MODEL PENAL

CODE, §210.2, Comment, at 32 n.76 (1980); Turner, note 20, supra, at

55-56, 64; Wyndam, Constructive Murder and Felonious Intent, 34 L.

MAGAZINE & REV. 461 (1902).

In cases in which the judge or jury did not relieve the defendant of

capital punishment for ur.intended death occurring during a felony, the

Home Secretary often did by granting executive clemency. E.g., ROYAL

COMMISSION ON CAPITAL PUNISHMENT, MINUTES OF

EVIDENCE 1949-1953, at 24 (Home Office memorandum noting its

practice of “strongly” considering commutation in cases of “constructive

murder” in which there is “the absence of intent’’); 3 J. STEPHEN, note

20, supra, at 57 & n.3, 85 (“The absence of a positive intention to kill, or

to inflict an injury” in felony-murder situations was “perhaps the

commonest case for the commutation of sentence under the existing law”

at the end of the Nineteenth Century; for example, clemency granted to

three defendants sentenced to die for taking part in a robbery during which

one ofthem shoved the victim causing him to die of a heart attack);

Wechsler & Michael, A Rationale of the Law of Homicide, 37 COLUM.

L. REV. 1261, 1309 n.116 (1937) (“premeditation” crucial in Home

Office deliberations on clemency in the 1930's).

*ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949-

1953, REPORT 31-33.

tentional killing during a felony to manslaughter, thereby

removing it from England’s then-extant death penalty for

murder. ”’

A reluctance to impose capital punishment for any but

intentional homicides has also characterized the American

experience. The earliest manifestation of this trend was the

Great Law of William Penn, promulgated in 1682 for the

American colony of Pennsylvania, which, until repealed by

Parliament in 1718, not only abolished the death penalty for

non-homicidal felonies, but also for homicides short of those

committed “willfully and premeditatedly.”** When Penn-

sylvania again revised its murder laws in 1792 (thus

commencing the American trend toward dividing murder

into degrees in order to limit the breadth of capital punish-

ment”), it was first proposed by Pennsylvania Supreme

"English Homicide Act of 1957, 5 & 6 Eliz. 2,c. 11. Section 1 of the Act

limited murder to “killing . . . done with . . . malice aforethought,” and

expressly abolished the “constructive malice” doctrine for homicide “in

the course . . . of some other offense.” Section 5(2) of the Act provided

one of them shoved the victim causing him to die of a heart attack);

in the case of any of them who by his own act caused the death of, or

inflicted or attempted to inflict, grevious bodily harm on” the victim, “but

the murder shall not be capital murder in the case of any other of the

persons guilty of it.” See ROYAL COMMISSION ON CAPITAL

PUNISHMENT 1949-1953, REPORT, Appendix 12, at 467-74

(describing the various legislative proposals, going back to the 1830’s, to

limit or abolish capital punishment, though not criminal liability, for

unintended homicides resulting from felonies). In 1965, England abolished

the death penalty even for premeditated murders. Murder (Abolition of

Death Penalty) Act of 1965, 8 Halisbury’s Stat. of England 541.

*8Charter to William Penn and Laws of the Province of Pennsylvania,

Passed Between 1682 and 1700, at 144 (1879). See Keedy, History of

the Pennsylvania Statute Creating Degrees of Murder, 97 U. PA. L.

REV. 759, 760-63 (1949); McCafferty, Major Trends in the Use of

Capital Punishment, 1 AMER. CRIM. L.Q., No. 2, at 9, 12 (1964).

2°9See Woodson v. North Carolina, supra, 428 U.S. at 290; Mullaney v.

Wilbur, 421 U.S. 684, 692-93 (1975); McGautha v. California, 402

U.S. 183, 197-98 (1971); Fisher v. United States, 328 U.S. 463, 484

(1946) (Justice Frankfurter, dissenting).

Court Justice William Bradford that first-degree (i.e.,

capital) murder be limited exclusively to “willful, deliberate

and premeditated killing.”*® Although the Pennsylvania

Senate subsequently included a felony-homicide provision

in the definition of first-degree murder, it did limit the

provision’s scope to only four felonies.*' Justice Bradford’s

proposal, and the Pennsylvania statute actually adopted,

presaged reforms by other state legislatures during the

Nineteenth Century designed, for the most part, to reduce

drastically (and in a few States to abolish) the categories of

unintentional homicides for which capital punishment could

be imposed. *? Other innovations were also made in the law of

homicide during this period, but it has been authoritatively

stated that “dissatisfaction” with imposing capital punish-

ment according to the “broad criteria of implied malice was

... the strongest motive for adopting grading in the history of

the reform.”’*?

As the Court has noted, the Nineteenth Century degree

Statutes themselves were “uniformly unsuccessful” at

“W. BRADFORD, AN INQUIRY HOW FAR THE PUNISH-

MENT OF DEATH IS NECESSARY IN PENNSYLVANIA 35

(1792); Keedy, note 28, supra, at 769-72.

314 Journal of the Senate (Pa. 1794).

See ALI, MODEL PENAL CODE §210.2, Comment, at 18-20, 32-

36, 40-42 (1980); Alderstein, Felony Murder: A Statutory Taxonomy, 4

AM. J. CRIM. L. 249, 251-62, 264-65 (1975-76).

*3Wechsler, Degrees of Murder and Related Aspects of the Penal Law of

the United States, in ROYAL COMMISSION ON CAPITAL

PUNISHMENT 1949-1953, MINUTES OF EVIDENCE, 784, 785.

In their comments annotating the Model Penal Code, Professor Wechsler

and his successor conclude that the distinctions drawn by the felony-

murder degree statutes made logical sense only as efforts to “speak to the

question of capital punishment.” ALI, MODEL PENAL CODE,

§210.2, Comment, at 20 (1980).

codifying the classes of murder for which juries were willing

to impose the penalty of death. Because large-scale jury

nullification continued to occur, additional reforms were

adopted, under which juries were given discretion with

regard to the imposition of capital punishment. McGautha v.

California, 402 U.S. 183, 197-99 (1971); see Woodson v.

North Carolina, supra, 428 U.S. at 291. Prominent among

the categories of “first-degree” murder for which “‘[j]uries

continued to find the death penalty inappropriate,” id., was

unintentional felony-murder, particularly when extended to

accomplices of the actual perpetrator of the homicide.** The

well-documented experience of the State of New York is

illustrative.

In 1936, after Governor Lehman asked the New York

Law Revision Commission “to consider the desirability” of

modifying the State’s definition of felony-murder,** the

Commission determined that the felony-murder doctrine

was encountering substantial “disapproval,”** evidenced

“See KENNEY, OUTLINES OF THE CRIMINAL LAW 139

(1933).

SLAW REVISION COMMISSION OF THE STATE OF NEW

YORK, SECOND ANNUAL REPORT 17 (1936). It appears that

Governor Lehman took this action because of the frequency with which

he found himself commuting the death sentences of persons convicted of

felony murder whose equally or more culpable accomplices, in severed

trials, had either been acquitted or convicted of a lesser degree of crime.

See Appendix C.

*This was so although by 1937 the New York Legislature had already

limited the State’s mandatory death penalty for first-degree felony-

murder to homicides committed during the course of a handful of felonies,

and the New York courts had further limited the doctrine by taking an

extremely narrow view of the duration of the underlying felony during

which the felon was strictly and capitally liable for any resulting deaths.

See generally, Wechsler, note 33, supra, at 784; Note, The Two-Trial

System in Capital Cases, 39 N.Y.U.L. REV. 50, 50-51 & n.10 (1964).

not only by “the difficulty of securing convictions by juries

under a rule contrary to the prevailing feeling,”’ but also by

“the evasions or artifices of the courts” in restrictively

construing the doctrine.” LAW REVISION COMMIS-

SION OF THE STATE OF NEW YORK, THIRD

ANNUAL REPORT 666, 668 & n.444 (1937). The

Commission particularly criticized the State’s first-degree

felony-murder rule for imposing capital “‘liability on the

defendant whose accomplice has committed homicide in the

course of a felony,” finding it “defective not in its substantive

provision,” but instead in its requirement that all of the

As in England, see note 25, supra, a good bit of judicial nullification has

characterized the history of capital felony-murder in this country. See

generally, ALIL MODEL PENAL CODE, §210.2, Comments, at 34-

35 & nn.81-90 (1980) (collecting cases, and noting that limiting

interpretations occur “most frequently in cases where the act of killing is

done by someone other than the accused”’); note 18, supra.

Furthermore, in the two or three jurisdictions in this country with well-

established pre- Furman traditions of appellate review of capital sentences,

see Hall, Reduction of Criminal Sentences on Appeal, 37 COLUM. L.

REV. 521 (1937), a consensus early developed not only that “there can

be no more aggravated killing” than one that was “deliberately planned,”

id. at 531, but also that death sentences should be reduced in cases in

which (i) there was not a strong showing of premeditation, or (ii) the

offender was not the actual perpetrator of the homicide, even where the

perpetrator himself was executed. E.g., State v. Hall, 176 Neb. 295, 125

N.W.2d 918 (1964) (uncertain from the evidence if defendant was the

actual perpetrator; death sentence reduced to life); Wesley v. State, 112

Neb. 360, 199 N.W. 719 (1924) (death sentence of youthful non-

triggerman reduced to life); Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170

(1917) (death sentence for accidental death resulting from killing during a

felony reduced to life).

accomplices “pay the extreme penalty of death.” Jd. at 699-

700.**

The Law Revision Commission proposed solving these

problems by limiting first-degree (i.e., capital) felony-

murder “to cases in which there exists some element” of

mens rea, and by limiting the accomplice’s liability to

instances in which the felonious confederacy encompassed

any “agreement to kill.” Jd. at 673, 697. However, as in so

many other jurisdictions, see Woodson v. North Caroline,

supra, 428 U.S. at 291-92, the legislature chose instead to

moderate the effect of capital punishment in felony-murder

cases by giving juries discretion to recommend life sentences

in such situations**—an innovation, notably, that the

legislature did not find necessary with regard to intentional

first-degree murder for an additional quarter century.“

Like judge and ,ury nullification of the death penalty for

unintended homicides resulting from felonies, “‘[e]xecutive

clemency” has historically provided a ““common means of

avoiding [such] . . . questionable executions.”’ Louisiana ex

rel. Francis v. Resweber, 329 U.S. at 477 (Burton, J.,

dissenting). Where available, the records of gubernatorial

pardons reveal a steady flow of commutations to felony-

Professor Wechsler attributes the legislative reform that grew out of the

Commission’s report “mainly [to] the fear of jury nullification in cases

where accomplices are not of equal culpability in relation to the

homicide.” Wechsler, note 33, supra, at 784. Accord, Ludwig, Foresee-

able Death in Felony Murder, 18 U. PITT. L. REV. 51, 53 & n.7

(1956).

99N.Y. Laws 1937, c. 67. See Williams v. New York, 337 U.S. 241,247

(1949) (characterizing this statutory reform as consistent with the

“modern philosophy of penology that the punishment should fit the

offender and not merely the crime.”’)

“See Note, note 36, supra, at 50-51 & n.10.

homicide offenders whose accidental perpetration of, or

limited participation in, the homicidal act convinced the

executive of an absence of homicidal intent.*' Where

statistical data are available, they, too, demonstrate the

historically important role played in capital clemency

decisions by the offender’s lack of premeditation and by the

executive’s desire to calibrate the punishment received by

felony-murder accomplices more accurately to their relative

degrees of responsibility for the homicide and thus to avoid a

result that “does not correspond to the feeling of the

population.’’*? 3 UNITED STATES DEPARTMENT OF

JUSTICE, SURVEY OF RELEASE PROCEDURES,

PARDON 64 (1939).

“Such commutations are numerous. Petitioner has collected a number of

illustrative examples in Appendix C.

“For example, a study of the “major themes recurring in governors’

statements in justifying commutation” of death sentences in North

Carolina between 1909 and 1954 demonstrate that, aside from a jury’s

or judge’s recommendation of commutation and mental disorder, the

prisoner’s lack of premeditation on the criminal act is the most frequently

cited reason for commuting death sentences to terms of imprisonment—

and its importance grew steadily over the period studied. Johnson,

Selective Forces in Capital Punishment, 36 SOC. FORCES 165, 167-

68 (1957). Accord, Wolfgang, Kelly & Nolde, Comparison of the

Executed and Commuted among Admissions to Death Row, 53 J.

CRIM. L. CRIM. & POL. SCI. 301 (1953) (study of 62 commutations in

Pennsylvania between 1914 and 1958, of which a third were based either

on lack of premeditation, the offender’s not being personally responsible

for the homicide, or both); see W. SMITHERS, TREATISE ON EXE-

CUTIVE CLEMENCY IN PENNSYLVANIA 146 (1909); Barnett,

The Grounds of Pardon, 17 J. CRIM. L. CRIM. & OL. SCI. 490, 503

(1927).

The authors of the most comprehensive study of American executive

clemency practices in capital cases conclude that “the commuting of the

death sentences to peripheral participants in conspiratorial murders

dramatizes the imperfection of a law which attaches equal punishment for

acts with differing degrees of culpability.” Note, Executive Clemency in

Capital Cases, 39 N.Y.U.L. REV. 136, 164 (1964).

As the Court has frequently held, the Eighth Amend-

ment’s “applicability must change as the basic mores of

society change.” Furman v. Georgia, supra, 408 U.S. at

382 (Chief Justice Burger, dissenting). The history and

traditional usage of capital punishment for accessorial

liability in felony-murder cases in this country and England

reveal a marked erosion over the past two centuries in the

degree to which the mores of contemporary Anglo-

American society have tolerated the execution of felons who

did not intentionally—and particularly who did not per-

sonally—take the life of another. We next show that this

trend has accelerated dramatically in this country during the

past decade.

b. Contemporary legislative judgments

“In a democracy the first indicator of the public’s

attitude” toward a given punishment for a given crime “‘must

always be found in the legislative judgments of the people’s

chosen representatives.” Furman v. Georgia, supra, 408

U.S. at 436-37 (Powell, J., dissenting). Since Furman,

almost every jurisdiction in the country that previously had a

capital-seniencing statute has substantially revised it. As a

whole, the recent legislative judgments thus expressed reveal

a strong and growing consensus “‘weigh|ing] very heavily on

the side of rejecting capital punishment as a suitable

punishment” for vicarious felony-murder, Coker v. Georgia,

supra, 433 U.S. at 596.

Of the 37 state and federal jurisdictions in this country that

now authorize the death penalty, fully 29 do not permit its

imposition on the sole basis of the defendant’s participation

in a robbery resulting in a homicide, where the defendant

neither committed the homicidal act nor intended or

contemplated its commission. In only 8 jurisdictions

including Florida is an accomplice made eligible for death on

the ground of his unadorned participation in a robbery during

which someone else kills.

Specifically, 14 jurisdictions require some culpable

mental state with regard to the homicide—usually intent—as

a prerequisite to conviction of the capital degree of that

crime.*? Four additional states require proof beyond a

“Eleven jurisdictions make knowing, intentional, or premeditated killing

an element of capital murder. 1981 Ala. Acts, §2(b), incorporating Ala.

Code § 13-A-6-2(a)(1) (“intent to cause the death of another person’’);

La. Crim. Code Ann. § 14.30(1) (1981 Supp.) (“specific intent to kill’’);

Mo. Rev. Stat. § §565.001, 565.008 (Supp. 1981) (premeditation and

deliberation); N.H. Rev. Stat. Ann. §630:1(I)(Supp. 1979) (“knowingly

cause the death of another’); N.Y. Penal Law §125.27(1)(a)iii)

(McKinney Supp. 1980) (see People v. Davis, 43 N.Y. 2d 17, 400

N.Y.S.2d 735 (1977)) (“intent to cause the death of another”); Baldwin’s

Ohio Legisl. Serv. 1981, at 5-165 (S.B. No. 1), § §2903.01(B), (D)

[enacted following Lockett v. Ohio, supra] (“‘purposely . . . cause the

death of another”); 18 Pa. Cons. Stat. Ann. § § 1102, 2502(a)(Purdon’s

1981) (“intentional killing”); Tex. Penal Code Ann., § §19.02(a)(1),

19.03(a)(2) (“intentionally or knowingly causes the death of an individual”

and “intentionally commits the murder in the course of [a felony]’’); Utah

Code Ann. §76-5-202(1) (“intentionally or knowingly causes the death

of another”); Va. Code Ann. § 18-2-31(d) (“willful, deliberate and pre-

meditated killing”); Wash. Legisl. Serv. 1981, No. 3, ch. 138, §2,

incorporating Wash. Rev. Code Ann. §9A.32.030(1 (a) (“premeditated

intent to cause the death of another’’).

In addition, three states require proof of some mental state short of

ntent to justify imposition of the death penalty. Ark. Stat. Ann. §41-

1501(1)(a) (Supp. 1979) (“extreme indifference to . . . life’); Del. Code,

Tit. 11, § §636(2), (4) (1981 Supp.) (“recklessly” or “negligently”

cause death during the commission of a felony); Baldwin’s Ky. Rev. Stat.

§507.020(b) (“extreme indifference to human life” and “wanton . . .

conduct which creates a grave risk of death . . . and thereby causes

death”). As analyzed in the recently revised commentary to the Model

Penal Code, these formulations require proof of an actual “awareness” on

the defendant’s part “of the creation of substantial homicidal risk;”

(continued)

reasonable doubt of intentional homicide before allowing

felony-murder to serve aS an aggravating circumstance

warranting infliction of the death penalty.“* Seven more

exclude felony-murder altogether from their lists of ag-

gravating circumstances that will support a death sentence. **

Two jurisdictions expressly preclude the death penalty in

cases such as petitioner’s by reason of the defendant’s non-

participation in the homicidal act.** And two more limit the

(footnote continued from proceeding page)

“inadvertent risk creation, however, extravagant and unjustified,” will

not suffice. ALI, MODEL PENAL CODE §210.2, Comment, at 21, 26

n.57, 27-28, 30 (1980). See Ark. Stat. Ann. §41-1501, Official

Commentary of the Attorney General; Baldwin’s Ky. Rev. Stat. §507.020

Commentary (adopting the “consciousness of risk” requirement and

noting, with particular reference to accessorial liability in felony-

homicide situations, that each accomplice’s “participation in [the]

felony” must itself “constitute{] wantonness manifesting extreme in-

difference to human life’).

“TIl. Rev. Stat., ch. 38, §9-1(b)6)(b) (Smith-Hurd Supp. 1978)

(“intentionally” killed the victim); Ind. Code Ann. § 35-50-2-9(b)(1)

(“intentionally” killed the victim); N.M. Stat. Ann. §31-30A-5(b)

(“intent to kill’); N.C. Gen. Stat. § 1SA-2000(e)(5), as interpreted in

State v. Cherry, 257 S.E.2d 551, 567-68 (N.C. 1979) (absent proof of

“willful, deliberate and premeditated murder” under N.C. Gen. Stat.

§ 14-17, conviction of felony-murder precludes use of that same felony to

supply the felony-murder aggravating circumstance in id.

§ 15SA-2000(e)(5)).

“Ariz. Rev. Stat. §13-703(F); Colo. Rev. Stat. Ann. § 16-11-103(6);

Idaho Code § 19-2515(f); Mont. Rev. Codes Ann. §46-18-303 (1979);

Neb. Rev. Stat. §29-2523(1) (Supp. 1979); Okla. Stat. Ann. Tit. 21,

§701.12; S.D. Comp. Laws §23A-28-1 (Supp. 1980). Missouri, which

is already accounted for in note 43, supra, and accompanying text, also

precludes use of felony murder as an aggravating circumstance. Mo. Rev.

Stat. §565.012(2) (Supp. 1981).

“49 U.S.C. §1473({6)(D) (absolute defense to the death penalty if

defendant’s participation in the killing was “reiatively minor’’); Md.

Crim. Law Code Ann. §413(e)(1) (reserving death penalty for actual

perpetrators of killings, i.e., “principal[s] in the first degree”’).

(continued)

death penalty for felony-homicides to exceedingly narrow

situations not involved in cases like petitioner’s.*’

Accordingly, Florida is joined by only 7 other juris-

dictions of this nation“ in a legislative judgment that mere

participation in a robbery during which another robber takes

life justifies the death penalty. But this does not end the

matter. For the dramatic trend away from Florida’s position

has accelerated even during the course of the last decade.

(footnote continued from proceeding page)

All told, including states already accounted for in notes 43-45, supra

and accompanying texts, eight capital-sentencing jurisdictions make a

defendant’s lack of participation in the fatal act a defense to the death

penalty at least so long as the defendant did not intend the death of the

victim. See 1981 Ala. Acts § 2(c), incorporating Ala. Code § 13A-2-23

(non-participant in homicidal act not liable for death penalty absent intent

to kill); Ark. Stat. Ann. §41-1501(2) (no liability for capital murder

where defendant did not either commit or aid in the “homicide act itself’);

Colo. Rev. Stat. Ann. § 16-11-103(5) (absolute defense to the death

penalty if defendant’s participation in the killing was “relatively minor’’);

Ill. Rev. Stat., ch. 38, §9-1(b)(6)(a) (felony-murder aggravating circum-

stance unavailable unless the defendant “actually killed’’ the victim);

Baldwin’s Ohio Legisil. Serv. 1981, at 5-163 (S.B. No. 1),

§ 2929.04(A)(8) (felony-murder aggravating circumstance unavailable

unless the defendant actually perpetrated the killing or had previously

“calculated” on taking and formed a “design”’ to take life during the

felony); Va. Code Ann. § 18.2-18 (1981 Cum. Supp.) (“except in case of

killing for hire . . . an accessory before the fact or principal in the second

degree to a capital murder shall be . . . tried . . . as though the offense were

[non-capital] murder in the first degree”).

“Conn. Gen. Stat. Ann. § §53a-54b(5), (7) (West Supp. 1980) (capital

felony-murder limited to rape and kidnapping); Vt. Stat. Ann., Tit. 13,

§ §2303(b), (c) (capital murder reserved for offenders who commit a

second unrelated murder or murder of a correctional officer).

“Cal. Penal Code § §189, 190.2(a)(17)i) (West. Supp. 1980); Ga.

Code Ann. § §26-1101(b), 27-2534.1(b)(2) (Supp. 1980); Miss. Code

Ann. § §97-3-19(2)(e), 99-19-101(5)(d) (Supp. 1979); Nev. Rev. Stat.

§ §200.030(1)(b), 200.033(4) (1979); S.C. Code § §16-3-10, 16-3-

20(C)(aX 1) (Supp. 1980); Tenn. Code Ann. § § 39-2402, 39-2404(i)(7)

(Supp. 1980); Wyo. Stat. Ann. § §6-4-101, 6-4-102(h\iv) (Supp. 1980).

Thus, none of the eight jurisdictions that have enacted new

death-penalty statutes since 1978 authorize capital punish-

ment for nothing more than the defendant’s participation in a

robbery scheme during which life is taken by another.**

More and more, therefore, it is the reasoned judgment of

“the State representing organized society” (Gregg v.

Georgia, supra, 428 U.S. at 192) that death is an excessive

punishment for unintended homicides, and particularly

those actually committed by another. As the Supreme Court

of Alabama noted in discussing that State’s statutory

requirement of intent for capital murder:

The felony-murder doctrine has been severely criti-

cized, primarily because in a variety of fact situations it

often operates to charge an individual with first degree

murder when the accused did not have the required

intent for murder or when the homicide was the result of

the actions of a third party over whom the accused had

little or no control. . . . The use of the felony-murder

doctrine is considered particularly harsh in the capital

punishment context, where constitutional safeguards

and public attitudes demand that the extreme penalty be

meted out only for the most reprehensible crimes. As

one commentator has observed, “[T]he death penalty is

an untenable sanction for negligent or accidental

homicide.”’ It was, no doubt, this dissatisfaction with

the doctrine which led our legislature to prohibit its use

in the trial of capital felonies.

“See the Alabama, Colorado, Connecticut, Maryland, Ohio, Pennsylvania,

South Dakota and Washington statutes cited in notes 43, 45, 46, supra.

Ex parte Ritter, 375 So. 2d 270, 274 (Ala. 1979).%°

c. Jury determinations

Although marked, the accelerating legislative trend

against authorizing the death penalty for vicarious, un-

intended felony-homicides does not completely reflect the

extent to which contemporary standards of decency have

evolved away from actually imposing the punishment for

that species of crime. American legislatures, of course,

consistently rely upon “[jJury sentencing. . . in capital cases

in order ‘to maintain a link between contemporary com-

munity values and the penal system—a link without which

the determination of punishment could hardly reflect “‘the

evolving standards of decency that mark the progress of a

“Accord, Ark. Stat. Ann. §41-1501, Official Commentary of the

Attorney General (the inclusion of a mens rea requirement for capital

felony murder in the Arkansas statute was compelled by doubts whether

“‘a miscreant who engaged in a non-capital offense should be subject to

capital punishment for a death in respect to which he had no culpability or

only such culpability as would ordinarily lead to manslaughter rather than

murder liability”).

“[ T]he climate of international opinion” (see Coker v. Georgia, supra,

433 U.S. at 596 n.10) is also strongly opposed to death as a sanction for

unintentional homicides. Thus, “[c]Jonstructive malice is unknown in. . .

Western Europe . . . . Although the provisions of law in these countries

differ from one another in many respects, intent to kill . . . is invariably a

necessary element in those more serious forms of homicide which

correspond more or less closely to [capital] murder. . . .” ROYAL

COMMISSION ON CAPITAL PUNISHMENT 1949-1953, RE-

PORT 43. Even Commonwealth countries inured to the English concept

of implied malice early removed unintentional felony-homicides from the

category of capital murder. See LAW REVISION COMMISSION OF

THE STATE OF NEW YORK, THIRD ANNUAL REPORT 670

(1937) (New Zealand, 1908; Canade, 1927); Indian Penal Code,

§ §299-300.

maturing society.” ’”’ Gregg v. Georgia, supra, 428 U.S. at

190, quoting Witherspoon v. Illinois, 391 U.S. 510, 519

n.15 (1968), and Trop v. Dulles, supra, 356 U.S. at 101

(plurality opinion). It is in the crucial interface between

Statutory authorizations and juries’ assessments of the

fitness of the extreme penalty for particular offenders that the

full force of contemporary society’s rejection of the death

penalty for accomplice liability in unintended felony-

murders becomes clear.

Accessible data illustrate the American jury’s repudiation

of capital sentencing in such cases in two ways.*! First, a

search of all reported opinions in post-1954 cases of

executions for homicides reveals only 6 cases out of 362 in

which clearly identifiable felony-murder nontriggermen

were executed. The last such execution occurred in 1955, a

‘'Harry Kalven, Jr. and Hans Zeisel first brought this trend to light. See

Kalven & Zeisel, The American Jury and the Death Penalty, 33 U. CHI.

L. REV. 769 (1966), reprinted in H. KALVEN & H. ZEISEL, THE

AMERICAN JURY 435-49 (1971). In a study of 111 jury trials in

potentially capital cases, the authors compared the guilt and sentencing

verdicts of the juries with the verdicts that the presiding judges considered

consistent with the law. Jd. at 770. Noting that “[t]he felony murder rule is

the harshest instance of strict liability in our criminal law,” Professors

Kalven and Zeisel concluded that often “the jury will not accept the legal

fiction of intent” embodied in that rule and, in accomplice cases,

frequently “rebels at imposing the death penalty for the vicarious

responsibility of the defendant.” Jd. at 775-76. The authors found that

felony-murder/accomplice factors generated far more jury leniency than

any other factor measured during the study. Jd. at 777. They were

surprised to find that jury-judge disagreement with regard to felony-

murder did not occur on the issue of guilt or innocence—juries being as

likely as judges to convict defendants of felony murder—but only on the

issue of the death penalty. Jd. at 771 n.6, 776 n.10.

quarter-century ago.*? By contrast, there were 72 executions

for rape in this country between 1955 and the decision in

‘This survey was conducted by searching for reported opinions in all

post-1954 cases of executions for homicide listed in the inventory in W.

BOWERS, EXECUTIONS IN AMERICA 200-401 (1974), as well as

in the four cases in which executions have occurred since that book was

published. The complete survey, including the citation of all 362 cases

found, is set forth in Appendix D to this brief. In his concurring opinion in

Lockett, Justice White reports an earlier survey conducted by counsel for

petitioner. See 438 U.S. at 624 & nn.6, 7. Recent scholarship has

uncovered several additional written opinions in cases in Bowers’ inven-

tory, see Dressler, The Jurisprudence of Death by Another: Accessories

and Capital Punishment, 51 COLO. L. REV. 17 (1979); and three

persons have been executed since 1978. A numbering error in the Lockett

survey has also been corrected in displaying the present survey in

Appendix D.

In additicn to six clearly identifiable felony-murder nontriggermen, our

survey fouud two executions for vicarious liability in non-felony murders

where the executed person intended that the homicide occur and hired

others to commit it (a class of case having no bearing on petitioner’s

submission herein), and 14 other cases in which the facts were not

reported in sufficient detail to reveal whether the executed person was or

was not a nontriggerman.

In Dressler, supra, the author undertook a similar study. Professor

Dressler has generously provided counsel for petitioner with the data

underlying that study. It diverges from our survey in that (i) it includes

several rape cases not relevant to our survey, and (ii) it counts as

“accessories” (as opposed to “perpetrators”) eight offenders who by

their own hands “inflicted wounds on the victim,” but who happened not

to strike “the more likely lethal” blow. See id. at 66-68 & n.299. In the

survey in Appendix D, all persons actually participating in the battery of

the victim are “triggermen.” Despite these methodological discrepancies,

the surveys reach the same essential conclusion: those persons convicted

of felony-murder over the past quarter century who had no role in the

death of the victim either by action or solicitation (and who therefore

probably did not intend that life be taken) were almost never executed.

See id. at 67-68 (reporting that “non-causal”’) (i.e., not murder-for-hire)

“accessories” —including ones who actively assisted in killing the victim,

but did not strike the blow that actually killed—comprised only 3 percent

of persons executed between 1955 and 1979).

Coker v. Georgia,** so that executions for homicides not

clearly committed or intended by the person executed have

been far less prevalent in this country in modern times than

the practice declared unconstitutional in Coker.

Contemporary rejection of the death penalty for murder

convictions like petitioner’s — where the defendant did not

personally kill, was not present when the actual killer killed,

and had not participated with the actual killer in a plot or

design encompassing the taking of life — is even more starkly

illustrated by a survey of the nation’s present death-row

population. As of October 20, 1981, there were 796 persons

confined in the United States under active sentences of death

for homicide.** Of the 739 for whom sufficient data are

available to make a determination, only 41 did not per-

sonally participate in the fatal assault upon the victim. Of the

40 among these 41 for whom sufficient data are available,

only 16 were not physically present when the fatal assault

was committed. Of these 16, only 3, including petitioner,

“UNITED STATES DEPARTMENT OF JUSTICE, LAW EN-

FORCEMENT ASSISTANCE ADMINISTRATION, NATIONAL

PRISONER STATISTICS BULLETIN, NO. SD-NPS-CP-3, CAPI-

TAL PUNISHMENT 1974, at 16-17 (November 1975).

“See NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,

INC., DEATH ROW U.S.A. (October 20, 1981), at 1 n.*.

This survey was conducted, first, by searching the reported and

unreported appellate opinions that have been rendered in cases of persons

presently on death row; second, by consulting trial judges’ sentencing

reports, where available; third, by telephonically contacting attorneys

involved in the cases in which no appellate decision has yet been

announced; and finally, in a few cases, by consulting newspaper accounts

of capital trials. The complete survey, including the citations or docket

numbers (where available) of all 796 cases is set forth in Appendix E.

were sentenced to die in the absence of a finding that they had

collaborated with the killer in a specific design to kill. **

As a result, then, of innumerable expressions by juries of

“the conscience of the community on the ultimate question

of life or death,” Witherspoon v. Illinois, supra, 391 U.S. at

519, the penalty of death in cases like petitioner’s has

become today all but extinct.%* Its exceedingly rare

appearance can only be described as “freakish” and

“wanton,” like “being struck by lightning.” Furman vy,

Georgia, supra, 408 U.S. at 309-10 (Justice Stewart,

concurring).

**The remaining 12 either bired, or otherwise solicited, someone else to

kill the victim, Or participated in a felonious plan that included a design to

kill the victim.

We recognize, of course, that the ultimate shape of the constitutional

rule for which we contend would be more rationally framed as Justice

White framed it in Lockett v, Ohio, supra, 438 U.S. at 624, in terms of

this Point I, if the Court preferred to reserve broader questions in the

absence of less accessible data.

Prepared actually to inflict the punishment of death. See Furman y.

Georgia, 408 U.S. 238 (1972). It is clear from recent history that the

infliction of death under circumstances where there is no purpose to take

life has been widely rejected as grossly out of proportion to the seriousness

of the crime.” Lockett v. Ohio, supra, 438 U.S. at 625 (Justice White,

concurring). (continued)

3. Conclusion

Thus, the “objective evidence of the country’s present

judgment” (Coker v. Georgia, supra, 433 U.S. at 593)

uniformly establishes that an individual’s unadorned par-

ticipation in a non-homicidal felony—be it the felony of rape

as in Coker or the robbery here—without the intent to take

life or to have another take it, cannot justify the death penalty

based upon the fortuity that a homicide resulted from the acts

of a confederate in the felony. Such participation is un-

questionably “deserving of serious punishment” (id. at

598), but the objective judgment of history and con-

temporary society is that it does not rise to the enormity

required for the extreme punishment of death.

(footnote continued from proceeding page)

The state courts have frequently remarked on this same phenomenon

over the past decade. E.g., Justus v. State, 276 S.E.2d 242, 246 (Ga.

1981); Jarrell v. State, 216 S.E.2d 258, 270 (Ga. 1975); State v. Rust,

250 N.W.2d 867, 875 (Neb. 1977); State v. Irwin, 282 S.E.2d 439, 447

(N.C. 1981); State v. Shaw, 255 S.E.2d 799, 804 (S.C. 1979); State v.

Groseclose, 615 S.W.2d 142, 149 (Tenn. 1981); Clark v. Common-

wealth, 257 S.E.2d 784, 794-95 (Va. 1979). Furthermore, state

appellate courts have not hesitated to reduce death sentences to life

imprisonment for that reason, in the rare instances in which juries have

imposed them on persons who did not take life or intend to take life. Hall

v. State, 244 S.E.2d 833, 838-39 (Ga. 1978); see also id. at 839 & n.2,

discussing Hill v. State, 229 S.E.2d 737 (Ca. 1976); People v. Glecker,

411 N.E.2d 849, 861 (Ill. 1980); State v. Sonnier,____ So. 2d__, No.

80-K-1846 (La. June 22, 1981); Wallace v. State,618 S.W.2d 67 (Tex.

Crim. App. 1981); Warren v. State, 562 S.W.2d 475, 476-77 (Tex.

Crim. App. 1978).

C. Death Is a Purposeless and Excessive Punish-

ment for Vicarious Liability in an Unin-

tentional Felony Murder Because it Makes No

Measurable Contribution to the Acceptable

Goals of Punishment

“The death penalty is said to serve two principal social

purposes” —‘“‘deterrence of capital crimes by prospective

offenders” and “retribution.” Gregg v. Georgia, 428 U.S. at

183. As applied to punish vicarious liability for unin-

tentional felony-homicide, the death penalty serves neither

purpose. It “makes no measurable contribution to ac-

ceptable goals of punishment and hence is nothing more than

the purposelsss and neediess imposition of pain and

suffering.”’ Coker v. Georgia, supra, 433 U.S. at 592.

1. Imposing the death penalty for unintended

homicides committed by others during the

course of felonies does not measurably increase

the likelihood that such homicides will not occur

in the future

Because “ ‘[rjetribution is no longer the dominant ub-

jective of the criminal law,’ ’” Gregg v. Georgia, supra, 428

U.S. at 183, quoting Williams v. New York, 337 U.S. 241,

248 (1949), the Eighth Amendment requirement of peno-

logical justification focuses heavily upon the claim of

deterrent effectiveness of the death penalty for a given

offense. In examining the deterrent value of the death

penalty, the Court has taken the view that the proper inquiry

is not whether capital punishment deters crime as a matter of

some overall, undifferentiated generalization, but rather, for

whom and for which crimes it can rationally be found to

serve as a deterrent. E.g., Lockett v. Ohio, supra, 438 U.S.

at 625 (Justice White, concurring); Gregg v. Georgia, supra,

428 U.S. at 185-86; Furman v. Georgia, supra, 408 U.S. at

455 (Powell, J., dissenting), quoting ROYAL COMMIS-

SION ON CAPITAL PUNISHMENT 1949-1953, RE-

PORT at 24.

Pursuing this crime-specific analysis in Gregg, the Court

upheld the constitutionality of the death penalty for de-

liberate murder in part because, as to that offense, common

sense suggests that “the possible penalty of death may well

enter into the cold calculus that precedes the decision to

act.”” 428 U.S. at 186. The Court explicitly recognized,

however, that in some situations where a homicide is not the

result of a “calculated,” “carefully contemplated,” or “‘cold-

blooded”’ decision to kill, “the threat of death has little or no

deterrent effect.” Id. at 184-86 & nn.30, 33.°”

Since “‘[a]ll foresight of the future, all choice with regard to

any possible consequence of action, depends on what is

known at the moment of choosing,” O. HOLMES, JR.,

THE COMMON LAW 55 (1881), “if a man does not

foresee the consequences of his act he cannot appreciate that

punishment lies in store for him if he does it.’’** Such is the

‘See Morissette v. United States, supra, 342 U.S. at 250-51 (“A

relationship between some mental element and punishment for a harmful

act . . . has afforded the rational basis for a tardy and unfinished

substitution of deterrence . . . in place of retaliation and vegeance as the

motivation for public prosecution’’).

‘6G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART 30

(1961). Modern criminal law scholarship repeatedly bears out Glanville

Williams’ observation. E.g., A. GOLDSTEIN, THE INSANITY

DEFENSE 12-13 (1967); H. PACKER, THE LIMITS OF THE

CRIMINAL SANCTION 45 (1968); Hall, Negligent Behavior Should

Be Excluded from Penal Liability, 63 COLUM. L. REV. 632, 641

(1963); Henry M. Hart, The Aims of the Criminal Law, 23 L. &

CONTEMP. PROB. 401, 421-22 (1958). Scholarship in other legal

fields has endorsed the same premise. E.g., G. CALABRESI, THE

COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS

56-57 (1970).

case of the person who associates himself in a felonious

scheme with no intention to take life or contemplation that it

will be taken by another. *®

Nor is there any basis in fact for assuming that the

likelihood of death occurring in a felony is so substantial that

felony offenders who would not be deterred by the penalty

affixed to the felony itself will nonetheless advert to that

likelihood and be deterred by the death penalty that “‘lies in

store” for it. Rather, the probability of death occurring

during the commission of any serious felony, including

robbery, is exceedingly low—about five in one thousand.

‘Because of the absence of any requirement of homicidal intention,

felony-murder has frequently been singled out as a paradigm of the

offense for which the death penalty in particular has little or no deterrent

efficacy. E.g., Hon. James R. Browning, The New Death Penalty

Statutes: Perpetrating a Costly Myth, 9 GONZ. L. REV. 651, 699

(1974); H.L.A. Hart, Murder and Its Punishment: England and the

United States, 52 NW. U.L. REV. 433, 437 (1957); Morris, Felon’s

Responsibility for Acts of Others, 10S U. PA. L. REV. 50 (1956);

Schulhofer, Harm and Punishment: A Critique of Emphasis on the

Results of Conduct in the Criminal Law, 122 U. PA. L. REV. 1497,

1556, 1605-06 (1974); Wechsler, note 33, supra, at 785 & n.6.

“Relying upon three studies of solved and unsolved serious felonies

committed in Cook County, Illinois in 1926 and 1927, Philadelphia

between 1948 and 1952, and New Jersey in 1975, the drafters of the

Model Penal Code concluded that “there is no basis in experience” for

concluding that unintended deaths accompany felonies sufficiently often

to justify capital punishment as a deterrent to that offense. ALI, MODEL

PENAL CODE §210.2, Comment at 38 & n.96 (1980). Notably, New

Jersey’s figures cover a period during which that State did not impose the

death penalty for any crime. The three studies reported the following data

regarding the frequency of death resulting from robbery:

(continued)

And, as we have noted above, even in that .5% of cases, the

likelihood of subsequent imposition of the death penalty is

negligible. Such less-than-occasional imposition of the death

penalty in a tiny fraction of highly abberational cases cannot

be rationally supposed to have a deterrent effect. See

generally, Furman v. Georgia, supra, 408 U.S. at 410

(Justice White, concurring). “[C]apital 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) (Justice Frankfurter, dissenting)

(emphasis added). Particularly in the case of unintended

killings committed by a co-felon, the deterrent justification

for that extreme punishment does not exist.

(footnote continued from proceeding page)

No. No.

No. of Crimes Accompanied per

Reported By Homicide % 1000

Cook County, Ill.

(1926-1927) 14,392 (est.) 71 49 4.9

Philadelphia

(1948-1952) 6,432 38 59 5.9

New Jersey A

(1975) 16,273 66 Al 4.1

Id. Accord, PRESIDENT’S COMMISSION ON LAW ENFORCE-

MENT & ADMINISTRATION OF JUSTICE, REPORT: THE

CHALLENGE OF CRIME IN A FREE SOCIETY 19 (1967) (study

of robberies in Washington, D.C. in the 1960's showing that less than one

half of one percent resulted in homicide).

2. Retributive justice is not measurably served

by punishing unintentional felony-

homicides with death

The absence on Earl Enmund’s part of any intention to

take life also deprives his death sentence of any retributive

justification.

“The retributive theory presupposes moral guilt.” G.

WILLIAMS CRIMINAL LAW: THE GENERAL

PART (30)(1961). It “rests on the idea that . . . because man

is responsible for his acts, he ought to receive his just

deserts.” H. PACKER, THE LIMITS OF THE CRIMI-

NAL SANCTION 37 (1968), cited in Gregg v. Georgia,

supra, 428 U.S. at 183 n.29. In making Eighth Amendment

judgments about the retributive value of the death penalty for

a given offense, the inquiry therefore focuses on whether a

person “‘deserved [that] punishment” in some moral and

personal sense. Rummel v. Estelle, supra, 445 U.S. at 288

(Justice Powell, dissenting); see Furman v. Georgia, supra,

408 U.S. at 308 (Justice Stewart, concurring).

In assessing moral guilt and personal responsibility, our

system of criminal law has traditionaily relied on the mental

element of crimes. See pp. 17-18, supra. Our traditions have

insisted that “[p]unishment . . . obtain [ | only when the deed

is done with a state of mind that is reprehensible as well as

unfortunate.”"*' More specifically, Anglo-American crimi-

nal law has for the most part considered “an injury . . .

inflicted by intention”’® to be “critical to criminal

culpability;” and, without exception, it has considered such

an intention critical to “the degree of criminal cuipability.”’

*ALI, MODEL PENAL CODE, §210.2, Comments, at 36 (1980).

®Morissette v. United States, supra, 342 U.S. at 250.

Mullaney v. Wilbur, supra, 421 U.S. at698, 702 (emphasis

added).® It has accordingly been fundamental not only to the

theory of retributive justice but to our system of criminal law

as a whole that “causing harm intentionally musi be

punished more severely than causing the same harm

unintentionally.” H.L.A. HART, PUNISHMENT AND

“In analyzing Eighth Amendment excessiveness claims, this Court has

often remarked on the absence of a requirement of intentional wrongdoing

in criminal statutes found unconstitutionally harsh. E.g., Robinson v.

California, 370 U.S. 660, 667 (1962); Weems v. United States, supra,

217 US. at 363, 365; O’Neil v. Vermont, supra 144 U.S. at 337 (Justice

Field, dissenting). See also Godfrey v. Georgia, 446 U.S. 420, 433

(1980) (death sentence invalidated because based on an interpretation of

an aggravating circumstance that would apply to “any murder,” rather

than only to those murders evidencing “a consciousness [on the offender’s

part] materially more ‘depraved’ than that of any person guilty of

murder’’).

On the other side of the coin, the Court and its individual members have

relied on the intentional nature of a given offense to justify a conclusion

that punishing it severely is justified under the Eighth Amendment. E.g.,

Gregg v. Georgia, supra, 428 U.S. at 184 n.30, 187; Coker v. Georgia,

supra, 433 U.S. at 602 n.1, 603 (Justice Powell, concurring). See Green

v. Georgia, 442 U.S. 95, 97 (1979) (intent to kill a “critical issue” at

penalty phase of a capital trial); Lockett v. Ohio, supra, 438 U.S. at 616

(Justice Blackmun, concurring) (“nature of [defendant’s] mens rea in

regard to the commission of homicidal act” is particularly important at

penalty stage of a capital trial); Furman v. Georgia, supra, 408 U.S. at

388 (Chief Justice Burger, dissenting) (“‘motive or lack of motive of the

perpetrator” is a frequent basis on which juries decide whom to sentence

to die).

RESPONSIBILITY 162 (1968). In petitioner’s case, it

cannot be said that any retributively justifiable prescription

of punishmer. proportioned to the degree of his personal

responsibility and moral guilt has occurred. Rather, Earl

Enmund has received the most severe penalty “even

though,” as the jury was instructed, “‘there [was] . . . no

premeditated design or intent to kill,” and no action on his

part to kill. A.6. In such a situation, a death sentence does

“As this Court demonstrated in Smith v. California, 361 U.S. 147

(1959) (imposing a scienter requirement in a First Amendment context),

the imposition of an intent requirement as a prerequisite to the constitu-

tional imposition of the death penalty would have no bearing on the

State’s general ability to define crimes and their mental elements as it

chooses. What the Court said on this point in Smith concerning state

action inhibiting expression is at least as applicable to “the action of the

sovereign in taking the life of one of its citizens,” Gardner v. Florida,

supra, 430 U.S. at 357-58: certain “legal devices and doctrines |that] in

most applications [are] . . . consistent with the Constitution . . . cannot

{constitutionally} be applied.” Smith v. California, supra, 361 U.S. at

150-51. Accordingly, as did Gardner, Beck v. Alabama, 447 U.S. 625,

638 n.14 (1980), and Lockett v. Ohio, supra, 438 U.S. at 605 n.13, this

case presents a proper occasion for “draw|ing] a “bright line’ between the

punishment of death” and all other situations potentially affected by the

Eighth and Fourteenth Amendments. Rummel v. Estelle, supra, 445

U.S. at 275.

Furthermore, an intent requirement would present “no unique hard-

ships” in the administration of capital-murder statutes. Mullaney v.

Wilbur, supra, 421 U.S. at 702. As the Court has noted in a variety of

contexts, “courts and juries every day pass upon knowledge, belief and

intent—the state of men’s minds—having before them no more than

evidence of their words and conduct, from which, in ordinary human

experience, mental condition may be inferred.”” American Communica-

tions Ass'n v. Douds, 339 U.S. 382, 411 (1950); accord, Village of

Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 265-67 (1975); United States v. United States Gypsum Co.,

supra; Mullaney v. Wilbur, supra, 421 U.S. at 702; Smith v. California,

supra, 361 U.S. at 154; United States v. Yellow Cab Co., 338 U.S. 338,

341-42 (1949).

not measurably, or even “marginally” or “negligibly,” serve

retributive justice, Furman v. Georgia, 408 U.S. at 312

(Justice White, concurring).

D. Conclusion

Nothing excepting Earl Enmund’s participation in the

robbery that led to Mr. and Mrs. Kersey’s death at the hands

of Sampson Armstrong has been put forward by the State of

Florida to justify his death sentence. That justification is

constitutionally insufficient. Coker v. Georgia, supra. In the

absence of any other justification, a judgment to kill Earl

Enmund—who himself did not kill, attempt to kill, or intend

to kill—is “‘grossly out of proportion to the severity of the

crime,” and so utterly ““neediess” and “purposeless,”’ id. at

592, that it cannot “accord with ‘the dignity of man,’ which is

the basic concept underlying the Eighth Amendment.” Gregg

v. Georgia, supra, 428 U.S. at 173.

PETITIONER’S DEGREE OF PARTICI-

PATION IN THE KILLINGS WAS GIVEN

INADEQUATE CONSIDERATION AND

INADEQUATE WEIGHT BY THE

FLORIDA COURTS, THEREBY VIO-

LATING HIS RIGHTS UNDER THE

EIGHTH AND FOURTEENTH AMEND-

MENTS

In Lockett v. Ohio, supra, 438 U.S. at 604 (plurality

opinion), four Justices of this Court concluded that

the Eighth and Fourteenth Amendments require that

the sentencer, in all but the rarest kind of capital case,

not be precluded from considering as a mitigating

factor ~ny aspect of a defendant’s character or record

and any of the circumstances of the offense that the

= proffers as a basis for a sentence less than

ath.

(emphasis in original) (footnotes omitted). A fifth member of

the Court, Justice Blackmun, concurred on a narrower

ground which focused specifically upon the most compelling

mitigating factor presented in Sandra Lockett’s case and

now in Earl Enmund’s: the sentencer must be permitted to

consider

the defendant’s degree of participation in the homicide

and the nature of his mens rea in regard to the

commission of the homicidal act.

438 U.S. at 616. The following term, in Green v. Georgia,

442 U.S. 95, 97 (1979), a majority of eight Justices

recognized that the mitigating factor identified in Justice

Blackmun’s Lockett concurrence is indeed a “‘critical issue”

at the penalty phase of a capital trial. The Court accordingly

invalidated a death sentence imposed without consideration

of evidence that the defendant was not present during the

killing and lacked any intent to kill.

In this case, both the trial court and the Florida Supreme

Court approached the sentencing decision in a manner that

denied any meaningful consideration to the mitigating factor

deemed crucial in Lockett and Green. We examine below the

processes through which this occurred, and their con-

sequences. Viewed as either procedure or result, the decision

to consign petitioner to death took inadequate account of the

degree of his participation in the crime for which he was being

sentenced, and thus subjected him to cruel and unusual

punishment forbidden by the Eighth and Fourteenth Amend-

ments.

A. The Trial Court and the Florida

Supreme Court Refused to Consider

as an Independent Mitigating Circum-

stance Earl Enmund’s Lack of Partici-

pation in the Killings and Total Ab-

sence of Homicidal Intent

Fla. Stat. Ann. §921.141(6)(d) directs the sentencer to

consider as a mitigating circumstance the fact that “{t]he

defendant was an accomplice in the capital felony committed

by another person and his participation was relatively

minor.” The trial court found that this mitigating circum-

stance was not present in petitioner’s case because his

“participation in the capital felony was major.” A.54; 399

So. 2d at 1373. In so doing, it clearly (i) telescoped its

consideration of the mitigating effect of petitioner’s limited

involvement in the Kersey killings into the exclusive mold of

section 921.141(6)(d); and (ii) so construed that provision as

to equate participation in the robbery with participation in the

killings.® Both of these steps clearly flout this Court’s square

®*The latter interpretation is underscored by the trial court’s finding that

petitioner “planned the capital felony.”’ A. 54; 399 So. 2d at 1373. There

was no evidence at trial that Earl Enmund planned to kill ariyone; at best

there was evidence that he planned the robbery. The court further noted

that petitioner “actively participated in an attempt to avoid detection by

disposing of the murder weapons,” ibid., but that alone hardly renders his

degree of participation “major.” Indec<!, Sandra Lockett also helped to

hide the weapon used by the triggerman in her case. Lockett v. Ohio,

supra, 438 U.S. at 590-91.

holding in Lockett.

Viewing the evidence in the light most favorable to the

prosecution, petitioner may have played a major role in a

robbery; but the record simply will not support a findimg that

Earl Enmund played a major role in the killing of Mr. and

Mrs. Kersey. Any such finding would have “no basis” in the

constitutional sense, e.g., Schware v. Board of Bar Ex-

aminers, 353 U.S. 232, 239 (1957), unless participation in

the underlying robbery plan is deemed tantamount to partici-

pation in an unplanned, “spontaneous” killing by another

robber (see pp. 3-4, supra) within the meaning of Fla. Stat.

Ann. §921.141(6)(d). The latter must have been the Florida

Supreme Court’s view when it held that “[t}he finding that no

mitigating circumstances were present was not error.” A.55;

399 So. 2d at 1373.

The procedure for weighing mitigating circumstances

against aggravating circumstances is well established under

Fla. Stat. Ann. §921.141(3). See, e.g., Elledge v. State, 346

So. 2d 998 (Fla. 1977). Under this procedure, so long as

there is a mitigating circumstance present in the case, reversal

of an aggravating circumstance relied on by the trial court—

as occurred here twice—requires reversal of the sentence as

well. Id. at 1002-03. Because the Florida Supreme Court did

not reverse petitioner’s sentence, it plainly did not consider

petitioner’s relative uninvolvement in the Kersey killings as a

mitigating circumstance, albeit an insufficient one; rather, the

court refused to consider it as a mitigating circumstance at all,

stating flatly that “[t]here are no mitigating circumstances” in

this case. A.55; 399 So. 2d at 1373. Such an exclusive,

narrow interpretation of section 921.141(6)(d) manifestly

“The second step is also manifestly at odds with Coker v. Georgia, supra.

See pp. 7-10, supra.

ignores the command of Lockett that the sentencer consider

“any of the circumstances of the offense” proferred by the

defendant in mitigation, 438 U.S. at 604, “as an independently

mitigating factor,” id. at 607. By foreclosing consideration of

factors as crucial as Earl Enmund’s limited participation in

the killing and his total lack of intent to kill, Florida has done

precisely what Lockett forbids. It has created and enhanced

the risk that the death penalty will be imposed in spite of

factors which may call for a less severe penalty. When

the choice is between life and death, that risk is

unacceptable and incompatible with the commands of

the Eighth and Fourteenth Amendments.

Id. at 605.

B. The Trial Court and the Florida Supreme

Court Failed to Engage in Any Precise, Con-

sistent Fact-finding, Supported by the Record,

as to the Extent of Earl Enmund’s Partici-

pation in the Killing and Whether that Degree

of Participation Merits Imposition of a

Sentence of Death

In his concurring opinion in Lockeit v. Ohio, supra, 438

U.S. at 616, Justice Blackmun recognized the constitutional

necessity of establishing

some limit to the method by which the States assess

punishment for actions less immediately connected to

the deliberate taking of human life.

This case illustrates that necessity only too well. As we shall

develop below, Earl Enmund stands sentenced to die upon

the basis of the most cursory, sloppy and inconsistent fact-

finding imaginable in a case with human life at stake. The

Florida Supreme Court has repudiated those findings by the

trial judge, but has nonetheless affirmed Enmund’s death

Sentence without offering any substitute rationale to explain

why the death penalty is appropriate for this defendant. If the

Eighth and Fourteenth Amendments demand any “reliability

in the determination that death is the appropriate punish-

ment in a specific case,” Woodson v. North Carolina, supra,

428 U.S. at 305, that command had been violated here.

(i)

Initially, the trial judge limited his findings to a trief oral

Statement, delivered in open court at sentencing on September

30, 1975, which recited in conclusionary form four of the

aggravating circumstances set forth in Floridae’s death-

sentencing statute. The judge made no findings at this time

concerning petitioner’s degree of participation, but merely

tracked the language of Fla. Stat. Anm. §921.141¢5)(d) in

concluding that “this capital felony was committed while the

Defendant was engaged in or was an accomplice in the

commission of or the attempt to commit or flight after

committing or attempting to commit a robbery.” A.28. He

added generally that “[t}he Court can find no mitigating

circumstances as it applies [sic] to this Defendant.” Ibid.

Although the trial judge stated on the record that “the

Court will further set forth its reasons in a written judgment to

be filed in the court files,” A.28, no such judgment was

forthcoming. Accordingly, on appeal the Florida Supreme

Court remanded and directed the judge to prepare written

findings. A.29.°

"Fla. Stat. Ann. §921.141(3) requires “specific written findings of fact”

whenever the death penalty is imposed. See Proffitt v. Florida, 428 U.S.

242, 250, 259 (1976) (plurality opinion).

On April 22, 1977, nearly 19 months after pronouncing

sentence, the trial judge finally issued his written findings. As

noted at pp. 47-49, supra, he determined in the section on

mitigating circumstances that petitioner was “‘an accomplice”

whose participation was nonetheless “major” because he

planned the robbery and actively participated in an effort to

dispose of the murder weapons. A.32. On this basis, no

mitigating circumstance was found. Jbid. In the section on

aggravating circumstances, the court repeated its oral finding

that the capital felony was committed “while the defendant

Enmund was engaged, or was an accomplice, in the com-

mission of, or an attempt to commit an armed robbery. FS

921.141(5)(d).” A.30. Then, in support of its finding that the

capital felony was “especially heinous, atrocious or cruel”

(Fla. Stat. Ann. §921.141(5)(h)—a finding later reversed by

the Florida Supreme Court®*—the trial court made the

pronouncement, completely at odds with its other statements,

that “it is only reasonable to conclude, and the Court so finds,

that the defendant Enmund and the defendant Sampson

Armstrong, each fired into the bodies of Mr. and Mrs.

Kersey.” A.31.

This pronouncement was utterly baseless and nothing

short of irresponsible when stated by a court charged with the

duty of deciding whether a defendant shall live or die—an

“action of the sovereign . . . [which] differs dramatically from

any other legitimate state action.”’ Gardner v. Florida, 430

U.S. 349, 357-58 (1977). There was not a shred of evidence

that Earl Enmund ever set foot on the Kersey’s property, and

the only prosecution evidence as to his whereabouts placed

*A.55; 399 So. 2d at 1373.

him in a parked car two hundred yards away while the killings

were taking place. R. 1025-27, 1030, 1037.%

The Florida Supreme Court properly disregarded the trial

judge’s groundless attribution of a gunman’s role to Enmund,

finding instead that

the only evidence of the degree of [petitioner’s] . . .

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.

A. 49-50; 399 So. 2d at 1370. However, the court was

apparently blind to the legal significance of this factual

reversal. Having found that the only evidence placed petitioner

away from the site of the killings, the Florida Supreme Court

necessarily undercut a key premise of the trial court’s

decision to condemn petitioner to die. Under any orderly

system of capital sentencing which considers—as Lockett

requires—that the degree of a defendant’s participation in a

homicide is relevant to his proper punishment for it, the least

that was required of the Florida Supreme Court was the

“The trial court’s proffered basis for its conciusion that petitioner

Enmund participated in the shooting was (1) that Jeanette Armstrong had

been “seriously wounded” by Mrs. Kersey’s opening shots (A. 31); (2)

that both Kerseys were shot by bullets from two different caliber guns; and

(3) that they were shot “while in the prone position.” (ibid.). But (1) there

is no evidence in the record that Jeanette did not fire any shots, either

before or after being hit; (2) even if one speculates that Jeanette never

fired, there is no reason of record to suppose that Sampson Armstrong did

not shoot both guns—picking up either Jeanette’s or Mrs. Kerseys’; after

all, itis Sampson Armstrong who said he shot both of the Kerseys and that

he “‘made sure that the people was dead” (R. 1207-08); and (3) in any

event, as the Florida Supreme Court expressly found, the evidence did not

establish that Mr. and Mrs. Kersey were shot in a prone position.

course of action advocated by Justice Overton, dissenting

from the affirmance of petitioner’s death sentence:

I . . . would remand for resentencing in view of the

specific finding of the majority that the appellant did not

actually participate in the shooting. In his sentencing

order the trial judge found to the contrary, expressing the

view in his findings of aggravating circumstances that the

appellant was present and assisted in the commission of

the murder. In my opinion, these contrary findings

require a resentencing proceeding.

A. 56; 399 So. 2d at 1373.

(ii)

In Gregg v. Georgia, supra, 428 U.S. at 190, this Court

recognized that

accurate seentencing information is an indispensable

prerequisite to a reasoned determination of whether a

defendant shall live or die.

The sentencing authority accordingly must scrutinize not

only the character, record and history of the defendant, but

also the “particularized nature of the crime.” Jd. at 206.

Thus, the sentencer is to be “guided and channeled by a

system that focuses on the circumstances of each individual

homicide and individual defendant in deciding whether the

death penalty is to be imposed.” Proffitt v. Florida, 428 U.S.

242, 258 (1976) (plurality opinion) (emphasis added). See

also Woodson v. North Carolina, supra, 428 U.S. at 304;

Stanislaus Roberts v. Louisiana, 428 U.S. 325, 333-34,

(1976). Furthermore, in Florida any risk of an arbitrary or

capricious result is supposed to be “minimized by Florida’s

appellate review system, under which the evidence of aggra-

vating and mitigating circumstances is reviewed and reweighed

by the Supreme Court of Florida ‘to determine independently

whether the imposition of the ultimate penalty is warranted.’

Songer v. State, 322 So. 2d 481, 484 (1975).” Proffitt v.

Florida, supra, 428 U.S. at 253. The ultimate object of these

safeguards is, of course, to guarantee that death sentences are

based upon reliable fact-finding. Beck v. Alabama, 447 U.S.

625, 637-38 & n.13 (1980); Green v. Georgia, 442 U.S. 95

(1979); Lockett v. Ohio, supra, 438 U.S. at 604; Gardner v.

Florida, supra, 430 U.S. at 359; id. at 364 (Justice White,

concurring); Woodson v. North Carolina, supra, 428 U.S.

at 305.

The slipshod approach of the Florida courts in this case

makes a mockery of these principles. It would seem elemen-

tary that in any case in which the defendant plausibly

contends that he did not kill, attempt to kill or intend to kill,

and was not even present when the killing took place, the

sentencer and reviewing court should at the very minimum

make a serious effort to (i) find out what happened, and (ii)

assess appropriate weight to that finding in relation to all

other aggravating and mitigating circumstances in the case.

Whether one agrees with Justice White’s position in Lockett

that death cannot constitutionally be imposed without a

considered finding that the defendant possessed a conscious

purpose to bring about the death of the victim (see Point I,

supra) or with Justice Blackmun’s position in that case that

the numerous different levels of intent preclude the drawing of

such a “bright-line” rule (438 U.S. at 614-15 n.2), an

accomplice on trial for his life is at least entitled under the

Eighth and Fourteenth Amendments to a reliable inquiry into

the extent of his culpability and a reasoned determination

why, even if the record does not reflect that he intended to

produce death, he should nonetheless be executed for his role

in the crime. That was not done in this case.

C. The Execution of Earl Enmund upon this

Record Would Constitute Excessive and Dis-

proportionate Punishment

This Court has long recognized that “it is a precept of

justice that punishment for crime should be graduated and

proportioned to the offense.”” Weems v. United States, supra,

217 U.S. at 367. Under any “objective consideration of the

particularized circumstances of the individual offense and the

individual offender” revealed by this record, Jurek v. Texas,

428 U.S. 262, 274 (1976) (plurality opinion), Earl Enmund’s

death sentence should be set aside as an excessive and dispro-

portionate punishment forbidden by the Eighth and Four-

teenth Amendments.

As noted previously, see pp. 51-52, supra, there is no

evidence here that petitioner killed, attempted to kill or

intended that anyone be killed. Even assuming arguendo in

contrast to Point I, supra, that other circumstances might

conceivably in some cases justify the execution of such a

defendant, this is not such a case. Surely the fact of

petitioner’s involvement in the Kersey robbery alone is not

sufficient. And while a lengthy record of violent crime might

arguably outweigh a defendant’s tangential participation in

the capital offense, Earl Enmund has no such record: he

served a one-year sentence for robbery eighteen years prior

to the instant offense, and has since led a law-abiding life in

his community as a farmer and father of four. R. 1467-70.

The Florida Supreme Court lias on numerous occasions

set aside death sentences imposed upon nontriggermen in far

more aggravated cases. See Taylor v. State, 294 So.2d 648

(Fla. 1974) (defendant armed and present during robbery;

active participant); Slater v. State, 316 So. 2d 539 (Fla.

1975) (defendant present during robbery; active participant);

McCaskill v. State, 344 So. 2d 1276 (Fla. 1977) (defendant

armed and present during robbery; active participant); Williams

v. State, 344 So. 2d 1276 (Fla. 1977) (following armed,

active participation in robbery, defendant returned to scene

and shot a witness who knew him in order to avoid being

identified); Malloy v. State, 38:2 So. 2d 1190 (Fla. 1979)

(defendant armed and present during robbery-kidnapping;

Florida Supreme Court found he had intent to kill, id. at

1193); Jacobs v. State, 396 So. 2d 713 (Fla. 1981)

(defendant armed, present at scene, fired at victims, and

“actively participated in the murders,” id. at 716); Barfield v.

State, 402 So. 2d 377 (Fla. 1981) (defendant was active

participant in murder-for-hire scheme; hired killers, showed

them where to find victim, and suggested appropriate location

for killing him); Smith v. State, ____ So. 2d__, No. 56,005

(Fla. July 16, 1981) (defendant was active participant in

beating of victim; ordered her execution in order to eliminate

her as a witness).

In Godfrey v. Georgia, 446 U.S. 420, 428 (1980), this

Court held that “if a State wishes to authorize capital

punishment it has a constitutional responsibility to tailor and

apply its law in a manner that avoids the arbitrary and

capricious imposition of the death penalty” (emphasis added).

Florida has failed that test in this case. Earl Enmund’s limited

participation in the killings and total lack of intent to kill

render this a constitutionally indefensible case for society’s

most “extreme sanction, suitable to the most extreme of

crimes.” Gregg v. Georgia, supra, 428 U.S. at 187.” And in

comparison to the Florida cases described above, the execu-

tion of Earl Enmund would be palpably arbitrary and

"See also State v. Dixon, supra, 283 So. 2d at 7; “. . . the Legislature has

chosen to reserve . . . [the death penalty’s] application to only the most

aggravated and unmitigated of most serious crimes.”

excessive. There is simply “no principled way to distinguish

this case, in which the death penalty was imposed, from the

many cases in which it was not.” Godfrey v. Georgia, supra,

446 U.S. at 433.

CONCLUSION

The judgment of the Supreme Court of Florida, insofar as it

leaves the sentence of death undisturbed, should be reversed.

Respectfully submitted,

WILLIAM C. McLAIN —

Assistant Public Defender

Hall of Justice Annex

495 N. Carpenter Street

Bartow, Florida 33830-

JACK GREENBERG 3798

JAMES M. NABRIT, III (813) 533-6715

JOEL BERGER Attorney of Record

JOHN CHARLES BOGER

DEBORAH FINS

JAMES S. LIEBMAN

Suite 2030

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTER-

DAM

New York University

School of Law

40 Washington Square So.

New York, New York 10012

Attorneys for Petitioner

APPENDIX B

STATUTORY PROVISIONS INVOLVED

At the time of petitioner’s trial on September 24-30, 1975,

the following provisions of the Florida Statutes were in effect:

Fla. Stat. Ann. § 782.04'a

ion 782.04 has been amended since petitioner’s trial. It presently

provides:

782.04 Murder

(1)(a) 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 arson, sexual

battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful

throwing, placing, or discharging of a destructive device or bomb, or

which resulted from the uniawful distribution or opium or any

synthetic or natural salt, compound, derivative, or preparation of

opium by a person 18 years of age or older, when such drug is

proven to be the proximate cause of death of the user, shall be

murder in the first degree and shall constitute a capital felony,

punishable as provided in s. 775.082.

(b) In all cases under this section, the procedure set forth in

§921.141 shall be followed in order to determine sentence of death

or life imprisonment.

(2) The unlawful killing of a human being, when perpetrated by

any act imminently dangerous to another and evincing a depraved

mind regardless of human life, although without any premeditated

design to effect the death of any particular individual, shall be

murder in the second degree and shall constitute a felony of the first

degree, punishable by imprisonment for a term of years not

exceeding life or as provided in § 775.082, § 775.083, or § 775.084.

(3) When a person is killed in the perpetration of, or in the attempt

to perpetrate, any arson, sexual battery, robbery, burglary, kid-

napping, aircraft piracy, or unlawful throwing, placing, or dis-

charging of a destructive device or bomb by a person other than the

person engaged in the perpetration of or in the attempt to perpetrate

such felony, the person perpetrating or attempting to perpetrate

(continued)

782.04 Murder

(1)(a) 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 arson, involuntary

sexual battery, robbery, burglary, kidnapping, aircraft

piracy, or unlawful throwing, placing, or discharging of a

destructive device or bomb, or which resulted from the

unlawful distribution of heroin by a person 18 years of

age or older when such drug is proven to be the

proximate cause of the death of the user, shall be murder

in the first degree and shall constitute a capital felony,

punishable as provided in § 775.082.

(b) In all cases under this section, the procedure set

forth in §921.141 shall be followed in order to determine

sentence of death or life imprisonment.

(2) When perpetrated by any act imminently danger-

ous to another and evincing a depraved mind regardless

of human life, although without any premeditated design

to effect the death of any particular individual, or when

committed in the perpetration of, or in the attempt to

perpetrate, any arson, rape, robbery, burglary, kid-

napping, aircraft piracy, or the unlawful throwing,

(footmote continued from preceding pace)

such felony shall be guilty of murder in the second degree, which

constitutes a felony of the first degree, punishable by imprisonment

for a term of years not exceeding life or as provided in s. 775.082, s.

775.083, or s. 775.084.

(4) The unlawful killing of a human being, when perpetrated

without any design to effect death, by a person engaged in the

perpetration of, or in the attempt to perpetrate, any felony other than

any arson, sexual battery, robbery, burglary, kidnapping, aircraft

piracy, or unlawful throwing, placing, or discharging of a destruc-

tive device or bomb, shall be murder in the third degree and shall

constitute a felony of the second degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084.

placing, or discharging of a destructive device or bomb,

except as provided in subsection (1 ), it shall be murder in

the second degree and shall constitute a felony of the first

degree, punishable by imprisonment in the state prison

for life or for such term of years as may be determined by

the court.

(3) When perpetrated without any design to effect

death, by a person engaged in the perpetration of, or in

the attempt to perpetrate, any felony other than arson,

rape, robbery, burglary, kidnapping, aircraft piracy, or

the unlawful throwing, placing or discharging of a

destructive device or bomb, it shall be murder in the third

degree and shall constitute a felony of the second degree,

punishable as provided in §775.082, §775.083, or

§ 775.084.

Fla. Stat. Ann. §921.141

921.141 Sentence of death or life imprisonment for

capital felonies; further proceedings to

determine sentence.

(1) Separate proceedings on issue of penalty—

Upon conviction or adjudication of guilt of a defendant

of a capital felony, the court shall conduct a separate

sentencing proceeding to determine whether the de-

fendant should be sentenced to death or life imprisonment

as authorized by §775.082. The proceeding shall be

conducted by the trial judge before the trial jury as soon

as practicable. If, through impossibility or inability, the

trial jury is unable to reconvene for a hearing on the issue

of penalty, having determined the guilt of the accused,

the trial judge may summon a special juror or jurors as

provided in Chapter 913 to determine the issue of the

imposition of the penalty. If the trial jury has been

waived, or if the defendant pleaded guilty, the sentencing

proceeding shall be conducted before a jury impaneled

for that purpose, unless waived by the defendant. In the

proceeding, evidence may be presented as to any matter

that the court deems relevant to sentence, and shall

include matters relating to any of the aggravating or

mitigating circumstances enumerated in subsections (6)

and (7).?a Any such evidence which the court deems to

have probative value may be received, regardless of its

admissibility under the exclusionary rules of evidence,

provided the defendant is accorded a fair opportunity to

rebut any hearsay statements. However, this subsection

shall not be construed, to authorize the ‘troduction of

any evidence secured in violation of the constitutions of

the United States or of the State of Florida. The state and

the defendant or his counsel shall be permitted to present

argument for or against sentence of death.

(2) Advisory sentence by the jury—After hearirg all

the evidence, the jury shall deliberate and render an

advisory sentence to the court, based upon the following

matters:

(a) Whether sufficient aggravating circumstances

exist as enumerated in subsection (6);

(b) Whether sufficient mitigating circumstances exist

as enumerated in subsection (7), which outweigh the

aggravating circumstances found to exist;°a and

fendant should be sentenced to life [imprisonment] or

death.

(3) my + in support of sentence of death—Not-

withstanding the recommendation of a majority of the

jury, the court after weighing the aggravating and mitiga-

ting circumstances shall enter a sentence of life imprison-

ment or death, but if the court imposes a sentence of

2aSince petitioner’s trial, this sentence has been amended. It presently

provides:

In the proceeding, evidence may be presented as to any matter that

the court deems relevant to the nature of the crime and the character

of the defendant and shall include matters relating to any of the

as circumstances enumerated in subsections

(5) and (6)

*aSince petitioner’s trial, this sentence has been amended. It presently

provides:

(b) Whether sufficient mitigating circumstances exist which

outweigh the aggravating circumstances found to exist.

death, it shall set forth in writing its findings upon which

the sentence of death is based as to the facts:

(a) That sufficient ge gee circumstances exist as

enumerated in subsection (6), and

(b) That there are insufficient mitigating circumstances,

as enumerated in subsection (7), to outweigh the aggra-

vating circumstances.‘a In each case in which the court

imposes the death sentence, the determination of the

court shall be supported by specific written findings of

facts based upon the circumstances in subsections (6)

and (7) and upon the records of the trial and the

sentencing proceedings. If the court does not make the

requiring the death sentence, the court shall

impose sentence of life imprisonment in accordance

with section 775.08.

(4) Review of judgment and sentence—The judg-

ment of conviction and sentence of death shall be subject

to automatic review by the Supreme Court of Florida

within sixty (60) days after certification by the sentencing

court of the entire record, unless the time is extended for

an additional period not to exceed thirty (30) days by the

Supreme Court for good cause shown. Such review by

the Supreme Court shall have priority over all other

cases and shall be heard in accordance with rules

promulgated by the Supreme Court.

(5) Aggravating circumstances—Aggravating cir-

cumstances shall be limited to the following:

(a) The capital felony was committed by a person

under sentence of imprisonment.

(b) The defendant was previously convicted of an-

other capital felony or of a felony involving the use or

threat of violence to the person.

‘aSince petitioner’s trial, this sentence has been amended. It presently

provides:

(b) That there are insufficient mitigating circumstances to

outweigh the aggravating circumstances.

death to many persons.

(d) The capital felony was committed while the

defendant was engaged, or was an accomplice, in the

commission of, or an attempt to commit, or flight after

committing or attempting to commit, ete | robbery, rape

arson, burglary, kidnapping, or aircraft piracy or the

scion Genuine, sinner adamienetadeteaties

device or bomb.

(e) The capital felony was committed for the purpose

of avoiding or preventing a lawful arrest or effecting an

escape from custody.

(f) The capital felony was committed for pecuniary

gain.

(g) The capital felony was committed to disrupt or

hinder the lawful exercise of any governmental function

or the enforcement of laws.

(h) The capital felony was especially heinous,

atrocious, or cruel.*°A

(a) The defendant has no significant history of prior

criminal activity.

(b) The capital felony was committed while the

defendant was under the influence of extreme mental or

conduct or consented to the act.

(d) The defendant was an accomplice in the capital

felony committed by another person and his participation

was relatively minor.

‘aSince petitioner’s trial, Fla. Stat. Ann. §921.141(5) has been amended

to include an additional subsection, “*(i).”’ Subsection “(i)” provides:

(i) The capital felony was a homicide and was committed in a

cold, calculated, and premeditated manner without any pretense of

moral or legal justification.

(e) The defendant acted under extreme duress or under

the substantial domination of another person.

(f) The capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

APPENDIX C

COMMUTATIONS OF FELONY-MURDER

DEATH SENTENCES IMPOSED ON

ACCOMPLICES WHO NEITHER TOOK LIFE

NOR INTENDED TO TAKE LIFE

Over the past century, governors in this nation have

regularly commuted felony-murder death sentences of ac-

complices to non-homicidal felonies (e.g., robbery, burglary,

etc.) who did not themselves commit a homicidal act. The

frequency of such commutations, and the reasons given for

them, reveal a widespread conviction among state chief

executives that the penalty of death is excessive punishment

for persons who neither took life nor attempted or intended to

take life. The governors’ explanations also reveal a pattern of

uneven jury nullification in severed felony-murder/accomplice

cases, necessitating the use of executive clemency to relieve

one accomplice of the death penalty when another equally or

more culpable participant in the felony escaped conviction, or

at least the death penalty, at the hands of a different jury.

Extensive documentation makes the reasons for commuta-

tions in New York particularly accessible. The following

instances are illustrative:

PUBLIC PAPERS OF GOVERNOR GROVER

CLEVELAND

1883-84. John B. Griffith's death sentence commuted

because “Griffith did not, with his own hand, throw the

explosive into the house, but that . .. was done by one of

his companions,” and because the other participants

were sentenced to prison terms. (P. 319.)

PUBLIC PAPERS OF GOVERNOR FLOWER

1893. William H. Parker’s death sentence commuted

because he was not the triggerman in a robbery homicide,

and the triggermen had been sentenced to life imprison-

ment. (Pp. 468-69.)

PUBLIC PAPERS OF GOVERNOR WHITMAN

1916. Onne Talas’ death sentence commuted on recom-

mendation of the Court of Appeals because he was convicted

of felony murder and sentenced to die solely for letting the

actual perpetrators of the robbery and homicide into his

employer’s house. The perpetrators, who tied up Talas in the

basement before strangling the victim, escaped apprehension.

(Pp. 365-68.)

1917. Elias Jarza’s death sentence commuted on recom-

rmendation of the district attorney because Jarza “‘did not fire

the shot which killed” the victim; rather, Jarza’s accomplice

was responsible for the killing. (Pp. 555-56.)

PUBLIC PAPERS OF GOVERNOR ALFRED E. SMITH

1920. Mahmout Blaza’s death sentence commuted

because “the person who did the actual killing has been

[sentenced to prison] . . . , whereas the one who

participated in the robbery [Blaza] has been [sentenced

to death]... .” (P. 547.)

PUBLIC PAPERS OF GOVERNOR FRANKLIN D.

ROOSEVELT

1931. Hyram Hirsch’s death sentence commuted on

recommendation of the trial judge because his co-defendant

Goltz was “completely exonerated of a crime of which I feel

he is equally guilty, and Hirsch, on the other hand, [is] . . .

compelled to suffer the extreme penalty.” (P. 517.)

PUBLIC PAPERS OF GOVERNOR HERBERT H.

LEHMAN

1933-1937. Governor Lehman commuted death sentences

in accomplice/felony-murder situations on a dozen occasions

during these years, citing the absence of intent, the offender’s

not himself having taken life, and the lower sentences of the

persons who did directly participate in the homicide: 1933:

Cornelius Johnson (p. 459); Vincent Garcia (p. 450);

Linwood Washington (p. 450); Paul LoGiudice (p. 450);

1934: Antonio Gumbo, Sam Silverman and Lovell Landers

pp. 601-02); 1935: Matios Leylegian and Nishan Sarkisian;

1937: Wentworth Springer, Lawrence Jackson and Robert

Taliafero (p. 584).

PUBLIC PAPERS OF GOVERNOR THOMAS E. DEWEY

1947. Floyd Edgar Martin’s death sentence commuted

based on evidence that his accomplice committed the

homicide. (P. 443.)

1949. Daniel Gentile’s death sentence commuted in

response to the district attorney’s letter: “[T]he trial

evidence does not indicate that [Gentile] was personally

armed at the time of the killing. .. . While this

circumstance furnishes no legal justification . . . it would

seem pertinent on . . . clemency.” (P. 466.)

1953. Al Keshner’s death sentence commuted be-

cause of “the complete absence of intent to cause

physical injury” and Keshner’s “total failure to appre-

hend the tragic consequences that might and did result”

from a scheme to commit arson, in which Keshner took

part and in which a police detective died. (P. 975.)

PUBLIC PAPERS OF GOVERNOR AVERELL

HARRIMAN

1955. Conception Estrada Correa’s death sentence

commuted, although his accomplices’ death sentences

were left intact, “because of his relatively minor role in

[a robbery homicide], as a look-out.” (P. 501.)

PUBLIC PAPERS OF GOVERNOR NELSON A.

ROCKEFELLER

1961. Louis Manuel Rosario’s death sentence commuted

“primarily [because of] the uncertainty in the trial record as to

which of the three defendants fired the fatal shot;” Rosario’s

robbery-homicide accomplices had been sentenced to prison.

(P. 800.)

1963. Lorenzo Cantanzaro’s sentence of death commuted

because he was “the driver of the getaway car and did not

participate in the actual shooting;” the jury recommended

mercy for the triggerman but not Cantanzaro. See Note,

Executive Clemency in Capital Cases, 39 N.Y.U.L. REV.

136, 164 (1964).

What records are available in other states indicate a similar

preoccupation with felony-murder and accessorial issues in

grants of executive clemency. For example:

CALIFORNIA

BIENNIAL MESSAGE OF GOVERNOR HIRAM

W. JOHNSON TO THE LEGISLATURE OF THE

STATE OF CALIFORNIA, 1917, at 58 (commutation

of George P. Friedell’s sentence because “he did not

participate in the actual killing . . . and the person directly

responsible for the homicide received considerations of

clemency some years ago”); C. DUFFY, 88 MEN

AND 2 WOMEN 84-88 (1962) (commutation of Carl

Fellow’s death sentence because he was not the trigger-

man and the proof of any intent to kill was dubious at

best); Braithwaite, Executive Clemency in California, |

ISSUES IN CRIM. 77, 100 (1963) (reporting commu-

tation of Charles Golston’s death sentence by Governor

Edmund G. Brown, Sr., in part, because of the execu-

tive’s reluctance to allow the execution of an offender

whose malice existed only by virtue of the felony-murder

rule).

COLORADO

REPORT OF THE STATE BOARD OF PARDONS,

1893-1894, at 26 (John Withers’ murder sentence reduced in

part because “[h]e did not know that murder was intended by

the other participants’’).

GEORGIA

Hall v. State, 244 S.E.2d 833, 839 n.2 (Ga. 1978)

(reporting the Board of Pardon’s commutation of Hall’s

death sentence, apparently because the evidence was

controverted as to whether Hall or his accomplice, who

received a life sentence, actually killed the victim).

ILLINOIS

DIVISION OF PARDONS AND PAROLES,

BIENNIAL REPORT, 1920-1922, at 23 (commutation

of Ignatz Potz’s death sentence because “[e]xecution of

Potz would have been a disgrace to the State. He did not

fire the shot which killed Peterson, the record in the case

to the contrary notwithstanding’’).

OHIO

Ohio: M. DiSALLE, THE POWER OF LIFE OR

DEATH, 78 (1965) (reporting Governor Davey’s 1935

commutation of Rudy Ashbrook’s death sentence be-

cause he was not the triggerman and his accomplice, who

was, received a prison term); id. (reporting Governor

Thomas Herbert’s 1947 commutation of Charles L.

Ames’ death sentence who was only an accomplice to a

burglary during which a co-felon shot a police officer);

(James Louis Long’s death sentence commuted by

Governor DiSalle in 1962, despite Long’s history of

recidivism, because he was only “the driver of the

[getaway] car,” while “the actual murderer [was] given

life).

APPENDIX D

SURVEY OF PERSONS EXECUTED IN

THE UNITED STATES SINCE 1954

Methodological Note:

This survey was conducted by searching for reported

appellate opinions in all post-1954 cases of execution for

homicide listed in the inventory in Bowers, Executions in

America 201-400 (1974).

Reported decisions were found for 360 such cases. In two

additional cases—Jose Luis Monge (Colorado) and Gary

Gilmore (Utah)—there was no appeal but the facts have been

widely reported.

Findings:

Of the 362 cases listed, it is clear in 339 that the individual

executed for homicide personally committed a homicidal

assault. In two the person executed had others commit a

homicide for him. In sixteen others the facts were not reported

in sufficient detail to determine whether the person executed

was a nontriggerman.

The survey uncovered only six cases in which clearly

identifiable non-triggermen were executed: Two in New

York, two in New Jersey, one in Florida, and one in

Tennessee. All six were executed in 1955.

ALABAMA

Bowen v. State, 274 Ala. 66, 145 So.2d 421 (1962)

Gosa v. State, 273 Ala. 346, 139 So. 2d 321 (1962)

Johnson v. State, 272 Ala. 633, 133 So. 2d 53 (1961)

. Boggs v. State, 270 Ala. 209, 116 So. 2d 903 (1959)

. Dockery v. State, 269 Ala. 564, 114 So. 2d 394 (1959)

. Martin v. State, 266 Ala. 290, 96 So. 2d 298 (1957)

. Johnson v. State, 265 Ala. 360, 91 So. 2d 476 (1956)

IAWSPWN

ARIZONA

10.

11.

12.

13.

14.

15.

lo.

State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962)

State v. Silvas, 91 Ariz. 386, 372 P.2d 718 (1962)

State v. Robinson, 89 Ariz. 224, 360 P.2d 474 (1961)

State v. Fenton, 86 Ariz. 111, 341 P.2d 237 (1959)

State v. Craft, 85 Ariz. 143, 333 P.2d 728 (1958)

State v. Jordan, 83 Ariz. 248, 320 P.2d 446 (1958)

State v. Coey, 82 Ariz. 133, 309 P.2d 260 (1957)

State v. Thomas, 73 Ariz. 52, 275 P.2d 408 (1954)

State v. Folk, 78 Ariz. 205, 277 P.2d 1016 (1954)

ARKANSAS

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

Moore v. State, 231 Ark. 672, 331 S.W.2d 841 (1960)

Bracy v. State, 231 Ark. 647, 331 S.W.2d 870 (1960)

Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959)

Young v. State, 230 Ark. 737, 324 S.W.2d 524 (1959)

Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959)

House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959)

Walker v. State, 229 Ark. 685, 317 S.W.2d 823 (1958)

Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958)

Moore v. State, 227 Ark. 544, 299 S.W.2d 838 (1957)

Boyd v. State, 227 Ark. 544, 299 S.W.2d 838 (1957)

Boone v. State, 227 Ark. 544, 299 S.W.2d 838 (1957)

Byrd v. State, 227 Ark. 544, 299 S.W.2d 838 (1957)

Leggett v. State, 227 Ark. 393, 299 S.W.2d 59 (1957)

Smith v. State, 227 Ark. 332, 299 S.W.2d 52 (1957)

Jenkins v. State, 222 Ark. 511, 261 S.W.2d 784 (1953)

CALIFORNIA

32.

33.

34.

35.

36.

People v. Mitchell, 48 Cal. Rptr. 371 (1966)

People v. Bentley, 58 Cal. 2d 858 (1962)

People v. Darling, 58 Cal. 2d 15 (1962)

People v. Ditson, 57 Cal. 2d 415 (1962)

People v. Busch, 16 Cal. Rptr. 898 (1961)

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

62.

63.

64.

65.

66.

67.

People v. Garner, 57 Cal. 2d 135 (1961)

People v. Hughes, 57 Cal. 2d 89 (1961)

People v. Lane, 56 Cal. 2d 868 (1961)

People v. Carter, 56 Cal. 2d 549 (1961)

People v. Gonzalez, 56 Cal. 2d 371 (1961)

People v. Lindsey, 56 Cal. 2d 324 (1961)

People v. Combes, 56 Cal. 2d 135 (1961)

People v. Kendrick, 56 Cal. 2d 71 (1961)

People v. Rittger, 55 Cal. 2d 849 (1961)

People v. Robillard, 55 Cal. 2d 88 (1960)

People v. Baldonado, 53 Cal. 2d 824 (1960)

People v. Moya, 53 Cal. 2d 819 (1960)

People v. Duncan, 53 Cal. 2d 803 (1960)'

People v. Cartier, 54 Cal. 2d 300 (1960)

People v. Cooper, 53 Cal. 2d 755 (1960)

People v. Scott, 53 Cal. 2d 558 (1960)

People v. Wade, 53 Cal. 2d 322 (1959)

People v. Hooten, 53 Cal. 2d 85 (1959)

People v. Hamilton, 52 Cal. 2d 636 (1959)

People v. Jones, 52 Cal. 2d 636 (1959)

People v. Galtman, 52 Cal. 2d 283 (1959)

People v. Nash, 52 Cal. 2d 36 (1959)

People v. Linden, 52 Cal. 2d 1 (1959)

People v. Duncan, 51 Cal. 2d 523 (1959)

People v. Feldkamp, 51 Cal. 2d 237 (1958)

People v. Ward, 50 Cal. 2d 702 (1958)

People v. Bashor, 48 Cal. 2d 763 (1957)

People v. Dement, 48 Cal. 2d 600 (1957)

People v. Tipton, 48 Cal. 2d 389 (1957)

People v. Hardenbrook, 48 Cal. 2d 345 (1957)

People v. Cheary, 48 Cai. 2d 301 (1957)

"Murder for hire.

68.

69.

70.

71.

72.

73.

74,

75.

76.

77.

78.

79.

80.

81.

82.

83.

84.

85.

86.

87.

People v. Johnston, 48 Cal. 2d 78 (1957)

People v. Riser, 47 Cal. 2d 566 (1956)

People v. Abbott, 47 Cal. 2d 363 (1956)

People v. Reese, 47 Cal. 2d 112 (1956)

People v. Morlock, 46 Cal. 2d 141 (1956)

People v. Caritativo, 46 Cal. 2d 68 (1956)

People v. Jordan, 45 Cal. 2d 697 (1955)

People v. Pierce, 45 Cal. 2d 697 (1955)

People v. Thomas, 45 Cal. 2d 433 (1955)

People v. Berry, 44 Cal. 2d 426 (1955)

People v. Cavanaugh, 44 Cal. 2d 252 (1955)

People v. Zilbaner, 44 Cal. 2d 43 (1955)

People v. Burwell, 44 Cal. 2d 16 (1955)

People v. Caldwell, 43 Cal. 2d 864 (1955)

People v. Simpson, 43 Cal. 2d 553 (1954)?

People v. Graham, 43 Cal. 2d 319 (1954)

People v. Santo, 43 Cal. 2d 319 (1954)

People v. Baldwin, 42 Cal. 2d 858 (1954)

People v. Byrd, 42 Cal. 2d 200 (1954)

People v. Rupp, 41 Cal. 2d 371 (1953)

COLORADO

People v. Monge, Executed June 7, 1967 (Did not

appeal, but is reliably reported to

have personally committed the

homicide for which he was exe-

cuted. See Burton, Pileup on Death

Row 68-69 (1963)

89. People v. Bizup, 150 Colo. 5 (1962)

90. People v. Hammil, 145 Colo. 577 (1961)

91.

People v. Wooley, 145 Colo. 577 (1961)

92. People v. Early, 142 Colo. 462 (1960)

2Father had his children murder his wife.

93. People v. Leick, 140 Colo. 564 (1959)

94. Peuple v. Gilbert, 134 Colo. 290 (1956)

95. People v. Martinez, 134 Colo. 82 (1956)

CONNECTICUT

96. State v. Davies, 146 Conn. 137 (1959)

97. State v. Wojculewicz, 142 Conn. 676 (1955)

98. State v. Taborsky, 142 Conn. 619 (1955)

99. State v. Malm, 142 Conn. 113 (1955)

100. State v. Lorain, 141 Conn. 694 (1954)

101. State v. Donahue, 141 Conn. 656 (1954)

DISTRICT OF COLUMBIA

102. Carter v. United States, 223 F.2d 332 D.C. Cir.

(1955)

FLORIDA

103. Spinkellink v. State, 313 So. 2d 666 (Fla. 1975)

104. Blake v. State, 156 So. 2d 511 (Fla. 1963)

105. Lee v. State, 141 So. 2d 257 (Fla. 1962)

106. Dawson v. State, 139 So. 2d 408 (Fla. 1962)

107. Hill v. State, 133 So. 2d 68 (Fla. 1961)

108. Leach v. State, 132 So. 2d 329 (Fla. 1961)

109. Smith v. State, 132 So. 2d 329 (Fla. 1961)

110. Johnson v. State, 130 So. 2d 599 (Fla. 1961)

111. Jefferson v. State, 128 So. 2d i32 (Fla. 1961)

112. Brooks v. State, 117 So. 482 (Fla. 1960)

113. Mackiewicz v. State, 114 So. 2d 684 (Fla. 1959)

114. Daniels v. State, 108 So. 3d 755 (Fla. 1959)

115. Frazier v. State, 107 So.2d 16 (Fla. 1958)

116. Withers v. State, 104 So. 2d 725 (Fla. 1958)

117. Nelson v. State, 97 So. 2d 250 (Fla. 1957)

118. Everett v. State, 97 So. 2d 241 (Fla. 1957)

119. Long v. State, 96 So. 2d 897 (FLa. 1957)

120.

121.

122.

123.

124.

125.

126.

127.

128.

129.

Raulerson v. State, 93 So. 2d 399 (Fla. 1957)‘

Rhone v. State, 93 So. 2d 80 (Fla. 1957)

Ezzell v. State, 88 So. 2d 280 (Fla. 1956)

LaVoie v. State, 84 So. 2d 593 (Fla. 1956)*

Barwicks v. State, 82 So. 2d 356 (Fla. 1955)

Ambrister v. State, 78 So. 2d 876 (FLa. 1955)‘

Anderson v. State, 78 So. 2d 876 (Fla. 1955)‘

Dyer v. State, 78 So. 2d 402 (Fla. 1955)

Hornbeck v. State, 77 So. 2d 876 (Fla. 1955)’

Gillard v. State, 73 So. 2d 677 (Fla. 1954)‘

GEORGIA

130.

131.

132.

133.

134.

135.

136.

137.

138.

139.

140.

141.

142.

143.

144,

145.

146.

147.

Jones v. State, 219 Ga. 245 (1963)*

Pugh v. State, 219 Ga. 166 (1963) ~

Chandler v. State, 219 Ga. 105 (1963)

Dye v. State, 218 Ga. 330 (1962)

Smith v. State, 218 Ga. 216 (1962)

Wimis v. State, 216 Ga. 350 (1960)

Mullins v. State, 216 Ga. 183 (1960)

Davis v. State, 215 Ga. 788 (1960)

Albert v. State, 215 Ga. 564 (1959)

Wilson v. State, 215 Ga. 446 (1959)

Wilson v. State, 215 G. 282 (1960)

Hill v. State, 214 Ga. 794 (1959)

Charlton v. State, 214 Ga. 778 (1959)

Woods v. State, 214 Ga. 546 (1958)

Murray v. State, 214 Ga. 350 (1958)

Adams v. State, 214 Ga. 131 (1958)

Golden v. State, 213 Ga. 481 (1957)

Dupree v. State, 213 Ga. 348 (1957)

3Non-triggerman in felony murder.

‘No facts given in decisions.

148. Mullins v. State, 213 Ga. 331 (1957)

149. Toler v. State, 213 Ga. 12 (1957)°

150. Elder v. State, 212 Ga. 705 (1956)

151. Styles v. State, 212 Ga. 698 (1956)

152. Fields v. State, 212 Ga. 652 (1956)

153. Cooper v. State, 212 Ga. 367 (1956)

154. Cochran v. State, 212 Ga. 245 (1956)

155. Turner v. State, 212 Ga. 199 (1956)

156. Philpot v. State, 212 Ga. 79 (1955)

157. Domingo v. State, 211 Ga. 691 (1955)

158. Hill v. State, 211 Ga. 683 (1955)

159. Jackson v. State, 211 Ga. 490 (1955)

160. Corbin v. State, 211 Ga. 400 (1955)

161. Morgan v. State, 211 Ga. 172 (1954)

162. Williams v. State, 210 Ga. 207 (1953)

IDAHO

163. State v. Snowden, 79 Idaho 266, 313 P.2d 706 (1957)

ILLINOIS

164. People v. Ciucci, 21 Ill. 2d 81, 171 N.E.2d 24 (1961)

165. People v. Dukes, 19 Ill. 2d 532, 169 N.E.2d 84 (1960)

166. People v. Carpenter, 11 Ill. 2d 60, 142 N.E.2d 11

(1957)

INDIANA

167. Judy v. State, 416 N.E.2d 95 (Ind. 1981)

168. Kiefer v. State, 169 N.E.2d 723 (Ind. 1960)

‘No facts given in decision.

IOWA

169. State v. Kelley, 253 lowa 1314, 115 N.W.2d 184

(1962)

170. State v. Brown, 253 Iowa 658, 113 N.W.2d 286

(1962)

‘KANSAS

171. State v. Latham, 190 Kan. 411, 374 P.2d 788 (1962)

172. State v. York, 190 Kan. 411, 375 P.2d 788 (1962)

173. State v. Hickock, 188 Kan. 473, 363 P.2d 541

(1961)

174. State v. Smith, 188 Kan. 473, 363 P.2d 541 (1961)

175. State v. Andrews, 187 Kan. 458, 375 P.2d 739 (1960)

KENTUCKY

176. Moss v. Commonwealth, 332 S.W.2d 650 (Ky. 1959)

177. Bowman v. Commonwealth, 290 S.W.2d 814 (Ky.

178. Debory v. Commonwealth, 289 S.W.2d 495 (Ky.

179. mae v. Commonwealth, 283 S.W.2d 184 (Ky.

180. Mien v. Commonwealth, 275 S.W.2d 921 (Ky.

181. pa v. Commonwealth, 268 S.W.2d 405 (Ky.

182. <0 v. Commonwealth, 265 S.W.2d 52 (Ky.

183. Tare v. Commonwealth, 265 S.W.2d 40 (Ky.

LOUISIANA

184. State v. Ferguson, 240 La. 593, 124 So. 2d 558 (1960)

185. State v. Faciane, 233 La. 1028, 99 So. 2d 333 (1957)*®

186. State v. McMiller, 233 La. 1028, 99 So. 2d 333

(1957)

187. State v. Bailey, 233 La. 40, 96 So. 2d 34 (1957)

188. State v. Sheffield, 232 La. 53, 93 So. 2d 691 (1957)

189. State v. Bush, 230 La. 181, 88 So. 2d 19 (1956)’

190. State v. Washington, 230 La. 181, 88 So. 2d 19

(1956)’

191. State v. Chinn, 229 La. 984, 87 So. 2d 315 (1955)

192. State v. Brazile, 226 La. 254, 75 So. 2d 856; 229 La.

600, 86 So. 2d 208 (1956)’

MARYLAND

193. State v. Lipscomb, 223 Md. 599, 165 A.2d 918 (1960)

194. State v. Shockley, 218 Md. 491, 148 A.2d 371 (1959)

195. State v. Kier, 216 Md. 513, 140 A.2d 896 (1958)

196. State v. Daniels, 213 Md. 90, 131 A.2d 267 (1957)

197. State v. Thomas, 206 Md. 575, 112 A.2d 913 (1955)

198. Jackson v. State, 249 Miss. 202, 161 So. 2d 660

(1964)

199. Anderson v. State, 246 Miss. 821, 152 So. 2d 702

(1963)

200. Slyter v. State, 246 Miss. 402, 149 So. 2d 489 (1963)

201. Simmons v. State, 241 Miss. 481, 130 So. 2d 860 (1961)

202. Stokes v. State, 240 Miss. 453, 128 So. 2d 341 (1961)

®McMiller was involved along with 2 others and Faclane in a robbery of a

store. Faclane shot the storekeeper’s son. The opinion does not detail

McMiller’s degree of participation.

"No facts given in decisions.

10d

203. Goldsby v. State, 240 Miss. 647, 123 So. 2d 429

(1960)

204. Dean v. State, 234 Miss. 376, 106 So. 2d 501 (1958)

205. Wetzel v. State, 232 Miss. 366, 98 So. 2d 767 (1957)

206. Thompson v. State, 231 Miss. 624, 97 So. 2d 227

(1957)

207. Jackson v. State, 228 Miss. 604, 89 So. 2d 626 (1956)

208. Jones v. State, 228 Miss. 458, 88 So. 2d 91 (1956)

209. Townsel v. State,228 Miss. 110, 87 So. 2d 481 (1956)

210. Sorber v. Wiggins, 226 Miss. 693, 85 So. 2d 479

(1956)

211. Russell v. State, 226 Miss. 885, 85 So. 2d 585 (1956)

212. Keeler v. State, 226 Miss. 199, 84 So. 2d 153 (1955)

213. Wiggins v. State, 224 Miss. 414, 80 So. 2d 17 (1955)

214. Gilmore v. State,225 Miss. 173,82 So. 2d 838 (1955)

215. LaFontaine v. State, 223 Miss 562, 78 So. 2d 600

(1955)

216. McNair v. State, 223 Miss. 83, 77 So. 2d 306 (1955)

217. Gallego v. State,222 Miss. 719, 77 So. 2d 321 (1955)

218. Lewis v. State, 222 Miss. 140, 75 So. 2d 448 (1954)

MISSOURI

219. State v. Anderson, 386 S.W.2d 225 (Mo. 1963)

220. State v. Tucker, 362 S.W.2d 509 (Mo. 1962)

221. State v. Moore, 303 S.W.2d 60 (Mo. 1957)

222. State v. Booker, 276 S.W.2d 104 (Mo. 1955)

NEBRASKA

223. Starkweather v. State, 167 Neb. 477,93 N.W.2d 619

(1958)

NEVADA

224. Bishop v. State, 597 P.2d 273 (Nev. 1979)

225. Archibald v. State, 362 P.2d 72! (Nev. 1961)

226. Steward v. State, 346 P.2d 1083 (Nev. 1959)

lld

NEW JERSEY

227. State v. Hudson, 38 N.J. 364, 185 A.2d 1 (1962)

228. State v. Ernst, 32 N.J. 567, 161 A.2d 511 (1960)

229. State v. Sturdivant, 31 N.J. 165, 155 A.2d 771 (1959)

230. State v. Stokes, 19 N.J. 59, 115 A.2d 62 (1955)

231. State v. A. Wise, 19 N.J. 59, 115 A.2d 62 (1955)

232. State v. H. Wise, 19 N.J. 59, 115 A.2d 62 (1955)

233. State v. Cruz, 17 N.J. 572, 112 A.2d 247 (1955)*

234. State v. Rios, 17 N.J. 572, 112 A.2d 247 (1955)

235. State v. Rodriguez, 17N.J.572, 112 A.2d247(1955)*

236. State v. Tune, 17 N.J. 100, 110 A.2d 90 (1954)

237. State v. Roscus, 16 N.J. 415, 109 A.2d 1 (1954)

238. State v. Monohan, 16 N.J. 83, 106 A.2d 287 (1954)

NEW MEXICO

239. State v. Nelson, 65 N.M. 403, 338 P.2d 301 (1959)

240. State v. Upton, 60 N.M. 205, 290 P.2d 440 (1955)

NEW YORK

241. People v. Mays, 13 N.Y.2d 784, 192 N.E.2d 173

(1963)

242. People v. Wood, 12 N.Y.2d 69, 187 N.E.2d 116

(1962)

243. People v. Miller, 6 N.Y.2d 154, 175 N.E.2d 547

(1961)

244. People v. Downs, 8 N.Y.2d 860, 168 N.E.2d 710

(1960)

245. People v. Philips, 8 N.Y.2d 850, 203 N.Y.S.2d 900

(1960)

‘Non-triggermen in felony murder.

12d

246. People v. Chapman, 8 N.Y.2d 809, 202 N.Y.S.2d 25

(1960)*

247. People v. Flakes, 7 N.Y.2d 1038, 200 N.Y.S.2d 422

(1960)*

248. People v. Green, 7 N.Y.2d 1038, 200 N.Y.S.2d 422

(1960)*

249. People v. Vargas, 7 N.Y.2d 555, 200 N.Y.S.2d 29

(1960)

250. People v. Mason, 7 N.Y.2d 891, 197 N.Y.S.2d 200

(1960)

251. People v. Keith, 6 N.Y.2d 880, 188 N.Y.S.2d 998

(1959)

252. People v. Dawkins, 6 N.Y.2d 814, 188 N.Y.S.2d 201

(1959)*

253. People v. Richardson, 5 N.Y.2d 767, 179 N.Y.S.2d

861 (1958)*

254. People v. Dan, 4 N.Y.2d 934, 175 N.Y.S.2d 174

(1958)*

255. People v. LaMarca, 4N.Y.2d 923, 175 N.Y.S.2d 167

(1958)

256. People v. Eckwerth, 4N.Y.2d 923, 175 N.Y.S.2d 164

(1958)

257. People v. Turner, 4 N.Y.2d 731, 171 N.Y.S.2d 119

(1958)*

258. People v. Burke, 3 N.Y.2d 985, 169 N.Y.S.2d 745

(1957)*

259. People v. Santiago, 3 N.Y.2d 809, 166 N.Y.S.2d 9

(1957)*

260. People v. Taylor, 2 N.Y.2d 1009, 163 N.Y.S.2d 617

(1957)*

261. People v. Browne, 2 N.Y.2d 842, 159 N.Y.S.2d 981

(1957)*

*In the cases marked by an asterisk, the reported opinion does not

describe the facts of the case; the facts were obtained from the appellate

briefs.

262.

263.

264.

265.

266.

267.

268.

269.

270.

271.

272.

273.

274.

13d

People v. Salemi, 2 N.Y.2d 159, 159 N.Y.S.2d 972

(1957)

People v. Reade, 1 N.Y.2d 959, 154 N.Y.S.2d 27

(1956)

People v. Edwards, 1 N.Y.2d 830, 153 N.Y.S.2d 213

(1956)

People v. Newman, I N.Y.2d 666, 150 N.Y.S.2d 196

(1956)*

People v. Byers, 309 N.Y. 908, 131 N.E.2d 580

(1955)*

People v. Roye, 309 N.Y. 903, 131 N.E.2d 578

(1955)*

People v. Roche, 309 N.Y. 678, 128 N.E.2d 323

(1955)*

People v. Nichols, 308 N.Y. 1038, 127 N.E.2d 869

(1955)*

People v. Reed, 308 N.Y. 1038, 127 N.E.2d 869

(1955)*

People v. Rosario, 308 N.Y. 723, 124 N.E.2d 337

(1954)

People v. Wissner, 303 N.Y. 856, 104 N.E.2d 917

(1952)*

People v. Cooper, 303 N.Y. 856, 104 N.E.2d 917

(1952)*

People v. Stein, 303 N.Y. 856, 104 N.E.2d 917

(1952)°

NORTH CAROLINA

275.

276.

277:

278.

State v. Boykin, 255 N.C. 432 (1961)

State v. Bumon, 247 N.C. 510 (1958)

State v. Conner, 244 N.C. 109 (1956)

State v. Scales, 242 N.C. 400 (1955)

*In the cases marked by an asterisk, the reported opinion does not

describe the facts of the case; the facts were obtained from the appellate

briefs.

%Non-triggermen in felony murder.

14d

OHIO

279.

280.

281.

282.

283.

284.

State v. Griffin, 180 N.E.2d 924 (Ohio 1962)

State v. Fenton, 179 N.E.2d 60 (Ohio 1961)

State v. Cosby, 110 Ohio App. 222, 162 N.E.2d 126

(1959)

State v. Byomin, 106 Ohio App. 393, 154 N.E.2d 823

(1958)

State v. Tannyhill, 101 Ohio App. 466, 140 N.E.2d

332 (1956)

State v. Allen, 133 N.E.2d 167 (1956)

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