Respondents Brief — Enmund v. Florida

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FILED

FEB 3 1982

u >.

ALEXANDER L. SitvAs

IN THE = —

SUPREME COURT OF THE UNITED STAT

October Term 1981

EARL ENMUND,

Petitioner,

against

STATE OF FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

BRIEF FOR RESPONDENT

JIM SMITH

Attorney General

GEORGE R. GEORGIEFF

Assistant Attorney General

Attorney of Record

LAWRENCE A. KADEN

Assistant Attorney General

RAYMOND L. MARKY

Assistant Attorney General

The Capirol Building

Tallahassee, Florida 32301

(904) 488-0600

QUESTIONS PRESENTED

WHETHER THE DEATH PENALTY CAN

EVER BE CONSTITUTIONALLY

APPROPRIATE FOR A DEFENDANT

CONVICTED OF FIRST DEGREE

MURDER STEMMING FROM HIS

EXTENSIVE PARTICIPATION IN A

DEADLY FELONY INVOLVING FIRE-

ARMS, WHEN THE DEFENDANT, AL-

THOUGH PRESENT IN THE VICINITY

OF THE KILLINGS, DID NOT

PERSONALLY COMMIT THE MURDERS,

AND THERE WAS AN ABSENCE OF

PROOF THAT HE INTENDED THE

DEATHS TO OCCUR?

WHETHER PETITIONER'S DEATH

SENTENCES WERE APPROPRIATE

CONSIDERING HIS HIGH DEGREE OF

INVOLVEMENT IN THE CRIMES, THE

FORSEEABILITY THAT DEATHS WOULD

OCCUR DURING A ROBBERY INVOLV-

ING THE USE OF FIREARMS, AND

THE FACT THAT PETITIONER

NEITHER INTRODUCED NOR PROFFER-

ED ANY EVIDENCE IN MITIGATION?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I. THE EIGHTH AMENDMENT DOES NOT

REQUIRE PROOF OF MENS REA AND/

OR INTENT BEFORE A DEFENDANT

CAN BE FOUND CRIMINALLY

RESPONSIBLE.

The Court Should Refuse To

Draw A Bright Line Which

Would Usurp The Traditional

Authority Of The Various

State Legislatures To

Determine What Punishment

Is Appropriate For A Parti-

cular Crime.

The Florida Legislature Did

Not Act Arbitrarily Or Un-

reasonably When It Predi-

cated Criminal Responsibi-

lity Upon Concepts Of For-

seeability.

1. Death sentence not

automatic ...

-i1i-

TABLE OF CONTENTS (continued)

2. Deterrence 48

3. Moral Outrage 57

II. PETITIONER'S DEATH SENTENCE WAS

APPROPRIATE BECAUSE OF HIS

EXTENSIVE INVOLVEMENT IN THE

CRIMINAL ACTIVITY, THE NATURE

AND CIRCUMSTANCES OF THE CRIME,

AND THE FACT THAT HE PRESENTED

ABSOLUTELY NO EVIDENCE IN MITI-

GATION. 64

TABLE OF AUTHORITIES

Cases Page

Brown v. State,

381 So.2d 690 (Fla. 1980),

cert. denied, 101 S.Cr. 931

(1981) 71

Coker v. Georgia,

433 U.S. Sh (1977) 36 ,43

Eddings v. Oklahoma,

-S. » Case No.

80-5727, (opinion filed

Jan. 19, 1982) 29,30

33,38

46 , 68

70,72

Enmund v. State,

399 So.2d 1362 (Fla. 1981) 5,68

-iii-

TABLE OF AUTHORITIES (cont.)

Cases Page

Gre v. Georgia,

yk: U.S. 154 (1976) 8 , 34,36

39 ,43 ,63

Hargrave v. State,

366 So.2d I (Fla. 1978),

cert. denied, 444 U.S. 919

(1979) —~CS 60 ,69,71

Hutto v. Davis,

Case No. 81-23 (opinion filed

Jan. 11, 1982) 29

Jurek v. Texas,

428 U.S. 262 (1976) 34 ,36 ,63

Lockett v. Ohio,

(1978) 10,14,18

20 ,21,27

29 ,33 ,46

52,65 ,66

Palsgraf v. Long Island R. Co.,

aie N.Y. 339, 162 N.E. 99

(N.Y. 1928) 41

Powell v. Texas,

392 U.S. 514 (1968) 32,893,908

Proffitt v. Florida,

oSe 6) 7,31,34

36 ,44,63

Roberts v. Louisiana,

428 U.S. 325 (1976) 30

-iv-

TABLE OF AUTHORITIES (cont. )

Cases Page

Roe v. Wade,

410 U.S i13 (1973) 48

Rummel v. Estelle,

ewe 1980) 28

Shriner v. State,

oO. (Fla. 1980),

cert. denied, 101 S.Cr. 899

T1981)"——~CS~S~ST 66

State v. Dixon,

283 So.2d 1 (Fla. 1973),

cert. denied, 416 U.S. 943

(1974) ——~—S 70

Stein v. New York,

346 U.S. 156 (1953) 26

United States v. Kaiser,

545 F.2d 467 (Sth Cir. 1977) 22

Vaught v. State,

So.2d ,» Case No. 52,835

(Opinion filed Jan. 7, 1982) 60

Wilder v. State,

583 S.W.2d 349 (Tex.Cr.App.

1979) 45

Woodson v. North Carolina,

S. 21,29,30

-Vr

Art.

Page

UNITED STATES CONSTITUTION

III, § 3

Eighth Amendment

Fourteenth Amendment

U.S.C.

Dm DP DP DP DP DD DP Pr rer DP ae mm

FEDERAL STATUTES

351(b)

794

844(d),(£) and (i)

1111

1201

1716

1751(b)

1992

2113(e)

2381

1472(i) and (n)

-vi-

11,15,28

24,45

22,26

22,23

26,45

STATE STATUTES

Ariz. Rev. Stat. Ann. § 13-301(2) 43

Ariz. Rev. Stat. Ann. § 13-303 A.3 43

Ariz. Rev. Stat. Ann. § 13-703(£)(4) 56

Ariz. Rev. Stat. Ann. § 13-703(g)(3) 46

Ariz. Rev. Stat. Ann. § 13-1105 43

Ark. Stat. Ann. § 41-1304 46

Ark. Stat. Ann. § 41-1501 43,56

Cal. Penal Code § 31 43

Cal. Penal Code § 189 43

Cal. Penal Code § 190.3(}) 46

Colo. Rev. Stat. § 16-11-103 (5) (d) 46

Colo. Rev. Stat. §16-11-103 (6) (e) 56

Colo. Rev. Stat. § 18-1-603 43

Colo. Rev. Stat. § 18-3-102 43

Conn. Gen. Stat. § 53a-8 44

Conn. Gen. Stat. § 53a-54b 44,56

Del. Code Ann. tit. 11, § 271 44

Del. Code Ann. tit. 11, § 636 44

-vii-

Del.

Fla.

Page

STATE STATUTES (cont. )

Code Ann. tit.

Stat. § 777.011

Stat. § 782.04

Stat. § 921.141

Ga. Code § 26-801 (b)

Ga. Code §

Ga. Code § 27-2534.1

Idaho Code § 18-204

Idaho Code

Ill.

Ind.

Rev. Stat. ch.

11, §4209(e) (h)

(1)

(6) (d) 64,

(3)

26-1101 (b)

(6)

§ 18-4003(d)

§ 19-2515(£) (4)

38, § 5-2

38, § 9-1(a)(3)

38, § 9-1(b) (5)

38, § 9-1(c)(5)

Code § 35-41-2-4

Code § 35-42-1-

-viii-

Page

STATF STATUTES (conc. )

Ind. Code § 35-50-2-9(b) (5)

Ind. Code § 35-50-2-9(c) (4)

Ky. Rev. Star. § 502.020

Ky. Rev. Stat. § 507.020(b)

Ky. Rev. Stat. § 532.025(2)(b) (5)

La. Code Crim. Pro. Ann. art. 905.4(e)

La. Code Crim. Pro. Ann. art. 905.5(g)

Md. Crim. Law Code Ann. § 413(d)(7)

Md. Crim. Law Code Ann. § 413(g) (6)

Miss. Code Ann. § 97-1-3

Miss. Code Ann. § 97-3-19-(2)(d)

Miss. Code Ann. § 97-3-19(2)(e)

Mo. Rev. Stat. § 565.012.2(6)

Mo. Rev. Stat. § 565.012.3(4)

Mont. Rev. Codes Ann. § 45-2-302(3)

Mont. Rev. Codes Ann. § 45-5-102(b)

Mont. Rev. Codes Ann. § 46-18-304(6)

Neb. Rev. Stat. § 28-206

Neb. Rev. Stat. § 28-303

-ix-

STATE STATUTES (cont.)

Neb. Rev. Stat. § 29-2523(1) (c)

Neb. Rev. Stat. § 29-2523(2) (e)

Nev. Rev. Strat. § 195.020

Nev. Rev. Star. § 200.030

Nev. Rev.Scatc. § 200.035(4)

N.H. Rev. Stat. Ann. § 630.01 I(c)

N.M. Stat. Ann. § 30-1-13

N.M. Stat. Ann. § 30-2-1(2)

N.C. Gen. Scat. § 14-5.2

N.C. Gen. Star. § 14-17

Ohio Rev. Code §2929.04(A) (2)

Okla. Stat. Ann. tic. 21, § 172

Okla. Stat. Ann. cit. 21, § 701.12.3

Okla. Stat. Ann. cic. 21, § 701.78

Or. Rev. Stat. § 161.155(2)(b)

Or. Rev. Stat. § 163.115(1)(b)

Or. Rev.Stat. § 163.115(3)

S.C. Code § 16-1-40

S.C. Code § 16-3-10

S.C. Code § 16-3-20(C) (a) (6)

-xXx@-

45,57

47 ,57

Page

STATE STATUTES (cont.)

S.C. Code § 16-3-20(C) (b) (4) 47

S.D. Compiled Laws Ann. § 22-3-3 45

S.D. Compiled Laws Ann. § 22-16-4 45

S.D. Compiled Laws Ann. § 22-16-8 45

S.D. Compiled Laws Ann. §23A-27A-1(5) 57

Tenn. Code Ann § 39-109 45

Tenn. Code Ann. § 39-2402 45

Tenn. Code Ann. § 39-2404(i) (4) 57

Tenn. Code Ann. § 39-2404(4)(5) 47

Tenn. Code Ann. § 39-2407 45

Texas Penal Code Ann. tit. 2,

§ 7.02(b) 45

Texas Penal Code Ann. tit. 5,

§ 19.03(a) 45,57

Urah Code Ann. § 76-2-202 45

Utah Code Ann. § 76-5-202(1)(d) 45

Utah Code Ann. § 76-3-207(1)(£) 47

Ve. Stat. Ann. tir. 13, § 4 45

Vc. Stat. Ann. cic. 13, § 2301 45,57

Vc. Stat. Ann. cit. 13, § 2403 45

-xi-

Page

STATE STATUTES (conc. )

Wash. Rev. Code § 9A.08.020 45

Wash. Rev. Code § 9A.32.030(1) (c) 45

1981 Wash. Laws chap. 138, § 2(5) 57

1981 Wash. Laws chap. 138, § 7(4) 47

Wyo. Stat. § 6-1-114 45

Wyo. Stat. § 6-4-101 45

Wyo. Stat. § 6-4-102(4) (iv) 47

OTHER AUTHORITIES

Capital Punishment: Hearings on

S rz Before the Committee on the

Judiciar ,» %/th Cong., Ist Sess.

25 (T5BYS 24

S. Rep. No. 143, 97th Cong., lst

Sess. 5 (1981) 24

S. 114, 97th Cong., lst Sess. (1981) 22

24 ,25

-xii-

STATEMENT OF THE CASE

Petitioner's statement of the case

omits material facts, is not written in a

light most favorable to sustain the

rulings of the Florida courts, and is

unacceptable.

Petitioner was convicted of two

counts of first degree murder and one

count of robbery in the Circuit Court of

Hardee County, Florida (R 1647). After a

sentencing hearing in which Pecicioner

neither introduced nor proffered any

evience (R 1677), the jury recommended

that sentences of death be imposed for

the two first degree murder convictions

(R 1691). Petitioner's co-defendant,

Sampson Armstrong, was also convicted of

two accounts of first degree murder, and

the jury recommended two death sentences

for him also. The trial court chen found

that the aggravating circumstances

outweighed che mitigating circumstances

and sentenced Petitioner to death on both

first degree murder counts (R 1700,

1701). He received a life sentence for

the robbery conviction.

The murders and robbery arose out of

an incident which occurred on April l,

1975. Sometime in March, 1975, Peri-

tioner and two other individuals had been

present at the victims’ home in order to

buy a calf (R 997). One of che victims,

Thomas Kersey, exhibitred a large roll of

cash, and Petitioner later admitted chat

the amount of cash had been a copic of

discussion that evening (R 1509).

Early on the morning of che murders,

Petitioner was seen in a car near the

scene of the murders (R 1330-1303). An

accquaintance of co-defendant Armstrong

testified chat on the day of the murders

Armstrong had told him that he,

Petitioner, and Armstrong's wife had

robbed and killed an elderly couple (R

1345-1353). Armstrong and his wife had

approached the old couple's farm house

door ostensibly for the purpose of asking

for water for an overheated car. How-

ever, Armstrong grabbed victim Thomas

Kersey at which time Mrs. Kersey opened

fire and shot Jeannette Armstrong. A gun

battle ensued, and both Mr. Kersey and

his wife were murdered. Shortly

thereafter, Petitioner was seen driving

the same automobile which had been seen

outside the victims’ residence by another

witness. In the car with him were his

common law wife and two unidentified

persons, one of whom was lying down in

the back seat of the car (R 1303).

Petitioner's common law wife, Ida

Jean Shaw, testified that on April 2,

1975, she had been in an automobile with

both Armstrong and Enmund and chat

Armstrong had given her two hundred

dollars (R 1195). She also testified

that on the day of the murders she asked

Enmund why he had done it, and he replied

that he had seen the man with the money

when he had bought che calf (R 1205,

1206). During the same conversation,

Armstrong stated that he had made sure

that the people were dead (R 1207, 1208).

Based on these facts, the Supreme

Court of Florida upheld the trial court's

findings that victim Kersey had a reputa-

tion for carrying large sums of money on

his person, that Petitioner had actually

seen Mr. Kersey with the money, and chat

Enmund planned and participated in the

robbery which resulted in the murders.

Also upheld was che trial court's finding

that Enmund had helped to cover up the

crime by directing that Ida Jean Shaw

dispose of the murder weapons (R 1201).

The Florida Supreme Court's more

detailed statement of facts can be found

at Enmund v. State, 399 So.2d 1362,

1363-1367 (Fla. 1981)(J.A. 35-42).

SUMMARY OF ARGUMENT

The Constitution does not require

proof of intent before a defendant can be

found criminally responsible. Rather,

the determination of criminal responsi-

bility has traditionally been left to the

various states, whose legislative deter-

minations are afforded great deference

and will not be disturbed absent a

showing of irrationality.

When determining whether a legis-

lative judgment that a sentence is

appropriate for a particular crime is

rational, this Court has traditionally

refrained from drawing "bright lines."

Judicially created, inflexible rules are

especially inappropriate in criminal

cases because, as this Court has

traditionally held, a particular sentence

must be tailored to meet the peculiar

facts and circumstances of the crime as

well as the character of the individual

perpetrator.

The Florida Legislature did not act

arbitrarily or irrationally when it based

criminal responsibility upon concepts of

foreseeability. The Florida Legislature

rationally concluded that homicides were

more likely to occur during the commis-

sion of certain potentially dangerous

felonies, and it provided that its most

serious sanction should be imposed in the

most extreme cases. However, in Florida,

just because a death sentence is possi-

ble, it is not automatic. The sentencing

authority's discretion is guided and

channeled, Proffitt v. Florida, 428 U.S.

424 (1976), and the sentencing authority

is required to weigh all relevant

mitigating evidence against the applica-

bility of specified aggravating factors.

In that regard, Florida has a statutory

mitigating circumstance which requires

that the sentencing authority consider

the extent of an accomplice's participa-

tion in the capital felony.

The Florida Legislature also ration-

ally concluded that the threat of capital

punishment would deter potential murder-

felons from committing the underlying

felonies which often result in death.

Gregg v. Georgia, 428 U.S. 153 (1976).

Moreover, Florida's legislative determi-

nation that it should be possible to

impose the ultimate penalty upon a

defendant who was convicted of recklessly

engaging in foreseeably deadly conduct is

also rational. Any judicial conclusion

to the contrary would threaten the lives

of sumerous innocent victims who might

otherwise be murdered if their assailants

or robbers knew they had nothing to lose

by eliminating witnesses to the under-

lying felony. A bright line is simply

not appropriate.

Il.

Death is the appropriate sentence

for Petitioner because of his extensive

involvement in the underlying felony

which resulted in the murders of two

innocent, elderly people. While the fact

that it was not proved that Petitioner

intended the murders to occur might be

relevant in mitigation, this doesn't mean

that either che trial court or the jury

had to find chat Petitioner was a minor

accomplice. In fact, the sentencing

authority found to the contrary that

Petitioner's participation was major --

he planned the robbery, procured his

accomplices, participated in the robbery,

was present in the getaway car near the

actual murders, and helped to cover up

the crime.

Finally, although Lockett v. Ohio,

438 U.S. 586 (1878), requires a

sentencing authority to consider all

relevant mitigating evidence which was

proffered or introduced, Peritioner

presented absolutely no mitigating

evidence during the sentencing phase of

his trial. Therefore, because Petitioner

has not even challenged the applicability

of the two valid aggravating circun-

stances found by the Supreme Court of

Florida, the aggravating circumstances

indisputably outweigh the total absence

of evidence in mitigation. Petitioner's

death sentences should not be disturbed.

ARGUMENT

THE EIGHTH AMENDMENT DOES NOT REQUIRE

PROOF OF MENS REA AND/OR INTENT BEFORE

A DEFENDANT CAN BE FOUND CRIMINALLY

RESPONSIBLE.

The Petitioner's major theme is that

his death sentences are disproportionate

to his criminal conduct because there was

no proof that he intended deaths to

occur. Therefore, while paradoxically

conceding that the State of Florida can

hold him criminally responsible and thus

guilty of first degree murder,! Peri-

tioner maintains that a death senrence

cannot be imposed in his case. However,

Peticioner's argument must fail because

the Eighth Amendment does not require

lsection 777.011, Fla. Stat., allows an

aider and abettor to be convicted and

punished as a principal. (J.A. 47).

proof of either mens rea or actual intent

before a state can find an offender

criminally responsible and eligible for

the punishment prescribed by law.

In Powell v. Texas, 392 U.S. 514,

535 (1968), the Court announced that it

had never stated that the Constitution

required a finding of mens rea before

criminal responsibility could be found:

We cannot cast aside the

centuries-long evolution of the

collection of interlocking and

overlapping concepts which the

common law has utilized to

assess the moral accountability

of an individual for his anti-

social deeds. [footnote

omitted] The doctrines of

actus reus, mens rea, insanity,

mistake, justification, and

duress have historically

provided the tools for a

constantly shifting adjustment

of the tension between the

evolving aims of the criminal

law and changing religious,

moral, philosophical, and

medical views of the nature of

man. This process of adjust-

ment has always been thought to

be the province of the states.

Id. at 392 U.S. 535, 536 (Emphecis

added).

In a footnote in his concurring

opinion in Powell, Justice White honed in

on the crucial analysis which must be

examined when determining criminal

responsibility -- "The proper subject of

inquiry is whether volitional acts

brought about the ‘condition’ and whether

those acts are sufficiently proximate to

the ‘condition’ for it to be permissible

to impose penal sanctions on the

‘condition.'" Id. at 392 U.S. 551, n.2.

Stated in terms of the issues presented

in Petitioner's case, Justice White's

comments would be whether che defendant's

volitional acts brought about the murders

and whether the defendant's acts were

sufficiently proximate to allow Florida

to impose penal sanctions.

More recently, while concurring in

Lockett v. Ohio, 438 U.S. 586, 614

(1978), Justice Blackmun recognized that

a requirement of proof of an actual

intent to kill before a defendant could

be capitally sentenced would impose on

the States an artificially defined mens

rea. In le iguage2 consistent with

Powell v. Texas, supra, he perceived the

myriad of difficulties which would be

presented by focusing on “intenr," as if

that were the only acceptable measure

2This correct analysis is uniquely

inconsistent with any notion of "bright

lines" in the determination of the issue

of life or death. The relevant consid-

erations cannot be reduced to such a

simplistic analysis. Justice Blackmun

concurred in the judgment of the Court

because under the Ohio statuts, unlike

Florida's, the sentencer was unable to

consider "the degree of the defendant's

[non-tri rr articipation in the

acts leading to the homicide and the

character of the defendant's mens rea."

Id. at 438 U.S. 616.

of criminal responsibiliry. Also, he

recognized that proof of mens rea would

not be a functional method for deter-

mining culpability for eighth amendment

purposes, because culpability involved a

mixture of action, inaction, and degrees

of mens rea:

2. I do not find entirely

convincing the disproportion-

ality rule embraced by my

Brother White. The rule chat a

defendant must have had actual

intent to kill, in order to be

capitally sentenced, does not

explain why such intent is the

sole criterion of culpability

for Eighth Amendment purposes.

What if a defendant personally

commits the act proximately

causing death by pointing a

loaded gun at the robbery

victim, verbally threatens to

use fatal force, admittedly

does not intend to cause a

death, yet knowingly creates a

— probability that the gun

will discharge accidentally?

What if a robbery participanr,

in order to avoid capture or

even for wanton sport,

personally and deliberately

uses grave physical force with

conscious intent to inflict

serious bodily harm, but not to

kill, and a death results? May

we as judges say that for

Eighth Amendment purposes the

absence of a “conscious purpose

of producing death," post, at

628, 57 L Ed 2d, at 1004,

transforms the culpability of

those defendants’ actions?

Applying a requirement of

actual intent to kill to

defendants not immediately

involved in the physical act

causing death, moreover, would

run aground on intricate

definitional problems attending

a felony murder. What

intention may a State attribute

to a robbery participant who

sits in the getaway car, knows

that a loaded gun will be

brandished by his companion in

the robbery inside the store,

is willing to have the gun

fired if necessary to make an

escape but not to accomplish

the robbery, when the victim is

shot by the companion even

though not necessary for

escape? What if the unarmed

participant stands immediately

inside the store as a lookout,

intends that a loaded gun

merely be brandished, but never

bothered to discuss with the

triggerman what limitations

were appropriate for che firing

of the gun? What if che same

lookout personally intended

that che gun never be fired,

but, after his companion fires

a fatal shot to prevent the

victim from sounding an alarm,

approves and takes off?

The requirement of the

actual intent to kill in order

to inflict the death penalty

would require this Court to

impose upon the States an

elaborate “constitutionalized"

definition of the requisite

mens rea, involving myriad

problems of line drawing that

normally are left to jury

discretion but that, in dis-

proportionality analysis, have

to be decided as issues of law,

and interfering with the

substantive categories of the

States criminal law. And such

a rule, even if workable, is an

incomplete method of

ascertaining culpability for

Eighth Amendment purposes,

which necessarily is a more

subtle mixture of action,

inaction, and degrees of mens

rea.

Finally, I must question the

data relied upon by my Brother

White in concluding, post, at

624, 57 L Ed 2d, at 1002, chart

only “extremely rare[ly]" had

the death penalty been used

when a defendant did not

specifically intend the death

of the victim. The representa-

tion made by petitioner

Lockett, even if accepted

uncritically, was merely that,

of 363 reported cases involving

executions from 1954 to 1976,

in 347 the defendant "person-

ally committed a homicidal

assault"-not that the defendant

had actual intention to kill.

App to Brief for Petitioner lb.

Of contemporary death penalty

statutes, my Brother White

concedes that approximately

half permit the execution of

persons who did not actually

intend to cause death.

(Emphasis added).

Lockett, supra at 438 U.S. 614, 615.

Justice Blackmun's observations illus-

trate the ramifications and irrational

results of Petitioner's bright line

theory predicated solely on intent -- and

his comments effectively show why a focus

on actual intent is patently unacceptable

as the sole measurement of criminal

responsibility.

Justice Rehnquist, dissenting in

parc, said it more directly:

I finally reject the proposi-

tion urged by my Brother White

in his separate opinion, which

the plurality finds ic unneces-

sary to reach. That claim is

that the death penalty, as

applied te one who participated

in this murder as Lockett did,

is "disproportionate" and

therefore violative of the

Eighth and Fourteenth Amend-

ments. I know of no principle

embodied in those Amendments,

other than perhaps one's

personal notion of what is a

ficting punishment for a crime,

which would allow this Court to

hold che death penalty imposed

upon her unconstitutional

because under the judge's

charge to the jury the latter

were not required to find that

she intended to cause the death

of her victim. As my Brother

White concedes, approximately

half of the States “have not

legislatively foreclosed the

possibility of imposing the

death penalty upon those who do

not intend to cause death."

Ante, at 625, 57 L.Ed.2d, at

1002. Centuries of common law

doctrine establishing the

felony-murder doctrine, dealing

with the relationship between

aiders and abettors and

principals, would have to be

rejected to adopt this view.

Just as surely as many

thoughtful moralists and

penologists would reject the

Biblical notion of "an eye for

an eye, a tooth for a tooth,"

as a guide for minimum senten-

cing, there is nothing in the

prohibition against cruel and

unusual punishments contained

in the Eighth Amendment which

sets that injunction as a

limitation on the maximum

sentence which society may

impose.

Id. at 438 U.S. 635, 636.

Justice Rehnquist's reference to

Justice White's separate opinion in

Lockett concerned the question of whether

a mens rea or actual intent to kill was

necessary before a death sentence could

be imposed. Justice White's position in

Lockett is particularly troublesome to

Respondent because of his position in

Woodson v. North Carolina, 428 U.S. 280

(1976). Ia that case, defendant Woodson,

like Petitioner, was capitally convicted

on a felony murder theory even though he

was not personally present in the store

where che murder occurred, did not pull

the trigger, acted only as a lookout

outside the door, and there was an ab-

sence of proof that he intended anyone to

die. In a dissenting opinion, Justice

White stated that he would uphold

Woodson's first degree murder conviction

and resulting mandato.y death sentence,

thus implicitly approving a death sen-

tence when intent to kill had not been

proven.

Notwithstanding the fact that there

is no persuasive or binding legal

authority to support Petitioner's

argument, the best evidence chat the

Constitution does not require proof of

actual intent to kill before a death

sentence can be imposed is the Consti-

tution itself. Article III, Section 3

provides that the Congress shall have the

power to decide the punishment for the

crime of treason. Con,.ess has provided

that a maximum penalty of death can be

imposed against one convicted of treason.

See 18 U.S.C. §2381.3 Any judicial

3The Fifth Circuit Court of Appeals has

declared the death penalty provision of

the Federal Government's murder statute,

18 U.S.C. § 1111, unconstitutional on

procedural grounds. United States v.

Kaiser, 545 F.2d 467 (5th Cir. 1977).

However, legislation is currently pending

before Congress to reinstitute the death

penalty under federal law. See

discussion of S.114, infra.

conclusion that capital punishment is

cruel and unusual if it were imposed upon

a defendant who was not proven to have

intended to kill would purportedly deny

the Congress its right and power to

determine the punishment for the crime of

treason. This power is expressly given

to Congress by the Constitution. It

should also be noted that treason is a

crime which not only does not require

intent to kill but also does not require

death at all. See 18 U.S.C. § 2381.

Legislation presently pending before

Congress "would authorize the imposition

of the death penalty for a number of

federal felonies in which death results,

even if there is no finding that the

defendant either committed the crime with

the conscious purpose of causing death or

participated in the homicidal act."

Capital Punishment: Hearings on S.114

Before the Committee on the Judiciary,

97th Cong., lst Sess. 25 (1981) (letter

stating the views of the Justice

Department).

Senate Bill 114 would allow the

death penalty in some instances even

where death did not occur. For example,

Congress is contempiating authorizing

death for the attempted assassination of

the President. Id. at 59-65 (Memorandum

of Justice Department). See also S. Rep.

No. 143, 97th Cong., lst Sess. 5,6,12,13

(1981). Also included in S.114 are the

non-homicidal crimes of espionage, 18

U.S.C. §794, and treason, 18 U.S.C.

§2381.4

4In a footnote, the Justice Department

listed the following crimes for which the

death penalty could be imposed even if

Consequently, if this Court were to

adopt the position urged by Petitioner,

in effect, the Court would be declaring

$.114 unconstitutional before it was even

enacted into law. Considering the far-

reaching effect an adverse ruling by this

Court would have on the aggregate crimi-

nal justice system, and the scope of

Congressional consideration in an

identical area of endeavor, this Court

might wish to consider inviting the

Justice Department to air its views of

(continued from previous page) death were

an unintentional result: 18 U.S.C. §32

(destruction of aircraft or aircraft

facilities); 18 U.S.C. §33 (destruction

of motor vehicles or motor vehicle

facilities; 18 U.S.C. §351(b) (kidna ping

a Member or Menber-elect of enaeenad ; 1

U.S.C. §§844(d),(f£), and (i) (explosives

offenses); 18 U.S.C. §1201 (kidnapping) ;

18 U.S.C. §1716 (mailing injurious

articles); 18 U.S.C. §1951(b) (kidnapping

of the President, Vice President,

President-elect, or Vice President-elect;

the subject at issue. Much could be

learned from the key principals in a

critical area of activity.

Petitioner has presented absolutely

no authority to support his contention

that proof of intent to kill is pre-

requisite to a capital sentence in a

felony murder situation. Moreover, the

Court has already upheld a death sentence

for a defendant convicted as an accom-

plice in a felony murder situation where

there was no proof of the defendant's

intent to cause death. See Stein v.

New York, 346 U.S. 156 (1953).

(continued from previous page)18 U.S.C.

§1992 (wrecking trains); 18 U.S.C.

§2113(e) (bank robbery); 49 U.S.C. 1472(i)

or (n) (aircraft piracy). Also death

resulting from the attempt or commission

of the following crimes would be

punishable by death: any rape, arson,

burglary or robbery in the special

maritime or territorial jurisdiction of

TH ane States (under 18 U.S.C.

1111).

If Peticioner's argument were

accepted, there would be no need for the

felony murder rule itself, a traditional

concept and rule of law which he has not

seen fit to challenge (Brief of Petri-

tioner at 19). See also Lockett v.Ohio,

supra, at 438 U.S. 602. Thus, since the

Constitution does not require an intent

to kill before capital punishment can be

imposed, the next question which must be

examined is Petitioner's contention that

this Court should judicially create a

rule prohibiting capital punishment in

such cases.

A. The Court should refuse to draw

a bright line which would usurp

the traditional authority of

the various state legislatures

to determine what punishment is

appropriate for a particular

crime.

Despite the fact that the Consti-

tution does not require it, Peritrioner

—

has attempted to convince the Court to

draw a bright line and rule that the

Eighth and Fourteenth Amendments prohibit

the States from ever imposing a death

sentence upon a defendant convicted of

felony murder when the defendant was not

the person who committed the murder and

where there was an absence of proof that

the defendant intended anyone to die.

Petitioner asks this Court to go too far!

In fact, the Court has traditionally

and consistently rejected the tempracion

to draw bright lines on constitutional

issues. For example, see Rummel v.

Estelle, 445 U.S. 263, 285 (1980) (rype

and severity of punishment of recidivists

is a matter within the sound discretion

of the sentencing jurisdiction).> In

capical cases, the Court has repeatedly

applied a policy of approving sentencing

procedures which require "particularized

consideration of relevant aspects of the

the character and record of each con-

victed defendant before the imposition

upon him of a sentence of death."

Woodson, supra, at 428 U.S. 303 (1976).