Transcript

IN THE SUPREME COURT OF THE UNITED STATES

DONALD A. CABANA, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY, ET AL., Petitioners, v. CRAWFORD BULLOCK, JR.

No. 84-1236

November 5, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:38 o'clock a.m.

APPEARANCES:

MARVIN L. WHITE, JR., ESQ., Special Assistant Attorney General of Mississippi, Jackson, Mississippi; on behalf of the petitioners.

JOSEPH T. MC LAUGHLIN, ESQ., New York, New York; on behalf of the respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Cabana against Bullock.

Mr. White, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF MARVIN L. WHITE, JR., ESQ., ON BEHALF OF THE PETITIONERS

MR. WHITE: Mr. Chief Justice, and may it please the Court, we are here today seeking a clarification of the Court's holding in Enmund versus Florida. This needed clarification comes about from what we contend to be an erroneous interpretation placed on Inman by the Court of Appeals for the Fifth Circuit.

Further, there has developed in this area a split among the circuits as to how, when, and by whom these Enmund criteria findings are to be made. The Fifth Circuit has held in several cases, this being one of them, that there must be some talismanic jury finding of the factors while the Eleventh Circuit holds that Enmund is a question of proportionality and can be found from the record by an appellate court.

The basic procedural background of this particular case is that Mr. Bullock was convicted by the Circuit Court of Hines County in 1979. The conviction and sentence was affirmed in August of 1980 by the Mississippi Supreme Court. And then this Court denied cert in 1981.

In this interim there after Enmund was decided in 1982, the District Court entered an opinion in this case on the habeas denying the write of habeas corpus in June of 1983, and then the Fifth Circuit reversed this Court, the District Court, in 1984.

The facts, of course, that give rise to this case are that on the night of September the 21st, 1978, the petitioner and a fellow named Rickie Tucker and some other friends went to a night spot in Jackson and at the end of the evening, when the place closed, they were found, Bullock and his friend were found without a ride, and their friends had left them there, and Mark Dickson offered them a ride home.

On the way there, there developed some altercation after stopping to buy a loaf of bread and finding none there. Bullock borrowed money from Mark Dickson. There developed an altercation over some drugs or some payment for drugs. It is not really clear in the record what it is. Dickson says, I don't have any money. You can take my car as payment.

They got back in the car after this, and drove a little further on. Dickson stopped the car and began to fight with Rickie Tucker, who was in the back seat of the car. Tucker ordered or told Bullock to grab hold of Dickson, which he did. Dickson broke away, got out of the car, ran down the road, then, pursued by Tucker this whole time.

Dickson -- I mean, Bullock had a cast on his leg, and he followed these people down the road, these two, and joined in the fray again, grabbing Bullock by the hair -- I mean Dickson by the hair of the head, and was hit himself by Tucker wielding a whiskey bottle as he hit Mr. Dickson on the head, cutting his hand.

The evidence shows that Mr. Dickson was killed by having his skull crushed by concrete blocks, and then Bullock and Dickson disposed of the body that night. Tucker wanted to burn the car and the body. Dickson said no -- I mean, Bullock said, no, let's take the car. And they buried -- took the body and submerged it in a lake, Bullock wading out into the lake with the cast on and everything, making sure the body was securely under the water after weighting it down with concrete blocks.

Now, some two days later Bullock was arrested while riding Dickson's car. Tucker was also tried in this case, and in the case there it went to a jury also. The jury decided in that case to give Mr. Tucker the life sentence. The jury in this case, of course, imposed the death penalty.

The issues, of course, are clear. The Fifth Circuit holding that since this trial, while the trial jury did not make a finding that Mr. Bullock intended to kill, or contemplated that lethal force would be used, actually killed or attempted to kill, then we cannot impose the death penalty on Mr. Bullock.

QUESTION: Mr. White, has the Fifth Circuit since its decision in this case ever had presented to it the question of whether the state might go back and attempt to retry on this issue, whether that might be double jeopardy of some sort?

MR. WHITE: Yes, they have. In Jones versus Thigpen, which is also on cert before this Court right now, the Fifth Circuit has said that they will apply it retroactively, and if there appears to them an evidentiary sufficiency on this, or the state did not offer proof on this particular instance, even though it was tried in a pre-Enmund context, that they will apply the double jeopardy clause and forbid us from retrying them under Bollington in that case.

So, we are faced with that situation in what we feel is an unfair position of being placed in, of having to have anticipated something that was not anticipated at the time these people were tried.

QUESTION: What was the disposition in this case?

MR. WHITE: In this case we were allowed to go back.

QUESTION: You were remanded for a new sentencing hearing.

MR. WHITE: New sentencing hearing, yes. We were allowed or told that we could go back and resentence, as we were in --

QUESTION: If you lose this case, there won't be one, will there, under the Fifth Circuit's present rulings?

MR. WHITE: Under the Fifth Circuit's present ruling, if, depending on how they -- of course, there was evidence of his intent --

QUESTION: I see.

MR. WHITE: -- offered in this case.

QUESTION: I see. There was.

MR. WHITE: So they are saying that they don't really question the fact that there was not intent shown here. They just said the jury didn't make that finding.

QUESTION: And the Appellate Court couldn't.

MR. WHITE: That the Appellate Court could not make this finding.

QUESTION: What reason did they give? The right to a jury trial?

MR. WHITE: The right to a jury trial. They never really clearly expressed why this finding had been made. They talk about the fact that the jury, the confusing jury instruction, the possibility -- and of course the right to trial by jury there, and we contend that this is a proportionality review, and not one that has to be -- those findings are -- the Appellate Court can find it.

The District Court so held in this case, and then it was, of course, reversed by the Fifth Circuit.

QUESTION: Mr. White, in Mississippi the law requires the jury to make all the findings necessary both for guilt and sentencing. Is that correct?

MR. WHITE: Yes, they did.

QUESTION: And has the Mississippi law been amended since this case arose with regard to Enmund?

MR. WHITE: Yes, in 1984, just last year, the legislature, on the advice of the Attorney General's office, after the decisions in the Fifth Circuit by -- in Hart v. Louisiana, and in the Skillern versus Estelle and in the District Courts, we decided that it would be, in order to stop any further recourse to this particular avenue of complaint about our death penalty, not -- that it was constitutionally required or anything, but just that this would forestall one more complaint we would have and one more layer of appeal that we would have to go through in deciding these issues to impose the death penalty. So --

QUESTION: What would the law now require?

MR. WHITE: The law now requires that the jury on sentence, during the sentence phase, to make those findings, and they are expressly set out, just as they were set out in Enmund, that the jury must find that he either killed, attempted to kill, contemplated that lethal force would be used, or intended that life be taken.

QUESTION: And you concede that the jury findings in this case were inadequate to meet Enmund?

MR. WHITE: No, we do not. No, we do not concede that. We have never conceded that, and we hold that the jury was properly instructed, and that in returning the death sentence on the guilt phase, that they by virtue of their finding found that he actually participated in the killing here.

The Mississippi Supreme Court held that he was present and aiding and abetting, aiding and assisting in the assault and the slaying of Dickson.

QUESTION: And it is your position that someone who was present and who does some overt act at the time of the killing to assist meets any Enmund requirement without --

MR. WHITE: Yes, I do. Without his acquisition -- we distinguish it from Enmund in the fact that Enmund's participation was only shown to be in the robbery, whereas here we have a participation in the actual assault and slaying of the person. Therefore we distinguish that from Enmund, saying that it is not a situation where Enmund applies here in that regard.

The jury further --

QUESTION: Well, the jury instruction was a little confusing, was it not, when it said first that the jury had defined that Bullock, while acting in concert and while present at the time and place by consenting to the killing, and then went on to say that whether or not it was done with a design to effect the death.

How do you reconcile --

MR. WHITE: Well, that particular instruction as instructions are required to be read in the state of Mississippi must be read in the context of all the other instructions, and Instruction 15 makes the flat requirement that he must have killed, and read in conjunction with those two, I think that that clarifies any problem there.

We would contend, too, that the finding there is clear enough that he consented to and did act in furtherance of this slaying. Further on the sentence phase the court did mention in Enmund that it was not dispositive, but a matter of concern that on the sentence phase instruction, the jury was told, as in this case, that they could consider as a mitigating factor his -- the fact that he was an accomplice, and that his participation was relatively minor.

So, we have that, too, that the jury was in this pre-Enmund context told to look at his participation and see if it was in fact minor, and that if it was, then they could use that as a mitigating circumstance and then weigh that against the aggravating circumstances that they --

QUESTION: Mr. Attorney General, your argument is that there was enough of a finding even by the jury.

MR. WHITE: Yes, that is one of our arguments.

QUESTION: That is one of your arguments, but even if there wasn't, you say there was enough of a finding by the Mississippi Supreme Court.

MR. WHITE: Yes, sir.

QUESTION: Wholly aside from what the jury might have done. Why don't you just argue that there not only was such a finding, but that there is no need for a jury to decide it? I guess that is part of your argument, isn't it?

MR. WHITE: That is part of our argument.

QUESTION: You just don't have a right to a jury trial --

MR. WHITE: And sentence.

QUESTION: -- to make that kind of a finding.

MR. WHITE: That's right. That is the core of our argument, that first and foremost there is no right to a jury finding or a jury --

QUESTION: In a sentencing phase.

MR. WHITE: -- sentencing phase on --

QUESTION: Yes.

MR. WHITE: The jury is not required to make the sentencing. Therefore this finding was not something that this Court engrafted on as an element to the crime or an element to the sentencing -- so what we are saying is that the Court there, although the finding was a sketchy finding, they said the court of Mississippi, as this Court relied on the finding of the Florida Supreme Court, because the District Court in Florida had found totally different facts.

QUESTION: We could, I suppose, analytically agree with you that the Mississippi Court could have made such a finding, but that it didn't, but it didn't make a good enough --

MR. WHITE. It didn't make a sufficient enough finding. But then, of course, we would ask that it just be remanded for them to make a further finding possibly but that is -- we consider that the jury finding there, that that instruction was clear enough that they had -- the jury had to find that intent was there, or that he --

QUESTION: The Fifth Circuit certainly didn't approach it as that it was an element of the crime.

MR. WHITE: Not as an element of the crime, no. They --

QUESTION: They just remanded for resentencing.

MR. WHITE: Yes, but with the requirement the jury make those findings.

QUESTION: I understand.

MR. WHITE: Not that the court could do so, but the Eleventh Circuit, of course, has taken a completely different approach, and that is that it is a proportionality finding, that jury findings might be very --

QUESTION: Why do you call it a proportionality? Why do you have to dress it up in language like that? It is just that this is a finding, a necessary finding that has to be made, but an Appellate Court may make it.

MR. WHITE: Well, that is exactly what we --

QUESTION: Just because there is no requirement for a jury to do it.

MR. WHITE: Well, this Court has couched it in terms --

QUESTION: Well, I mean, that is your argument.

MR. WHITE: Of proportionality.

QUESTION: All right.

MR. WHITE: And Solem V. Helm and Pully v. Harris, that is the way that this Court has addressed this thing, and so we were just using the Court's own language there.

QUESTION: General White, can I follow up on that? Because there is one part of your argument I don't quite follow. You argue that there was a sufficient jury finding that basically they were instructed that if he was not an unwilling participant, that that is enough of an element of intent or something along those lines, and I think the Mississippi Supreme Court said something to the same effect, that he was not an unwilling participant, but did the Mississippi Supreme Court say anything that we cannot reasonably assume that the jury itself had already found?

I mean, you argue, in other words, that the Mississippi Supreme Court in effect made a finding of fact that the jury did not make, and if so, just exactly what was it?

MR. WHITE: Well, of course, our first position is that the finding was made by the jury.

QUESTION: Right, I understand, but even if it wasn't you say, well --

MR. WHITE: Even if it wasn't, even if that jury finding has found that that finding was -- may be insufficient there somehow, the Supreme Court in its consideration --

QUESTION: And what I am trying to find out is, what is there in the Supreme Court opinion that goes beyond anything that we could reasonably attribute to the jury?

MR. WHITE: Well, I don't think there is a lot, other than just maybe in a clearer language than the jury instruction. The jury instruction is --

QUESTION: I see.

QUESTION: The arguable defect in the jury instruction, at least in part, is that they might not even, if you look at certain parts of the instruction, they wouldn't have to find any kind of an intent.

MR. WHITE: That's true, but they were also instructed -- they had to look at the instruction as a whole.

QUESTION: I know, but the argument is that they might have understood they didn't need to find intent at all. And in that event, if you approach it that way, then the Mississippi Supreme Court certainly did find something that the jury didn't necessarily find.

MR. WHITE: Well, possibly so, but there is another -- our interpretation or our interpretation of Enmund is that the Court left us with four options there, and any one of those would support the death penalty, one of those being that he attempted to kill, and actually took a part in the furtherance of that, or that he killed.

We don't read Enmund as requiring that if someone actually killed, that he had to have an intent to do so in that particular context.

QUESTION: Yes, but the Fifth Circuit's position, I think, was that because of the instructions to the jury in the trial court, although there might have been evidence that would have supported the same finding that the Supreme Court of Mississippi made, the jury might not have made that, might not have made that finding.

MR. WHITE: Yes, that has been their position both in this case and in Redigs and Jones, Skillern and Hart v. Louisiana, all of those. They are concerned with whether the jury made this finding there.

QUESTION: So I don't think it is entirely accurate to say that the Supreme Court of Mississippi did nothing that we know for sure the jury did --

MR. WHITE: Well, we contend that that finding that they made that he was an active participant, present, aiding, and assisting in the assault and the slaying, we think that is sufficient enough finding, and --

QUESTION: If the jury didn't make it, the Supreme Court did, and you say that was enough.

MR. WHITE: That is enough. That is sufficient.

QUESTION: And it is enough under -- as a matter of Mississippi law as well if the jury doesn't make the finding?

MR. WHITE: It has been. Of course, this case, as has been pointed out, was tried long before Enmund, so that was not in their mind when they were making this finding. Since that time, on cases that were tried pre-Enmund or even after Enmund but before the amendment of the statute, the Supreme Court does make that finding, and they have --

QUESTION: They thought it was consistent with Mississippi law, obviously.

MR. WHITE: Right. Certainly they did. Mississippi law does allow them to make that finding. It is not as some other state --

QUESTION: Until the statute was passed.

MR. WHITE: Until the statute was passed, and we even had some cases since that time where those --

QUESTION: General White, I won't ask you to do it now, but after lunch it would be helpful to me if you would call my attention to the portion of the Mississippi Supreme Court opinion in which you think they made a finding the jury did not make.

MR. WHITE: Yes, sir.

QUESTION: That would be helpful, because I have a problem with it.

MR. WHITE: Of course, in Mississippi, the situation involved we will have, there are about ten cases involved now. We have 40 people on death row, and ten of those cases are such that this case will impact on those cases as to how this decision comes out, because there were no jury findings made in those cases, and the findings on Enmund were basically done by the Supreme Court are not made at all because it was not an issue raised before the Supreme Court.

We would submit that the view taken by the Eleventh Circuit is a more -- approach in this particular context, that the finding of an Appellate Court on the record is done all the time, and the decision, of course, in Ross v. Kemp is totally consistent with the ruling in this Court in Enmund versus Florida.

The basis of proportionality, relying on the facts as set forth here in Florida, throughout the Inman opinion this Court makes it plain that it was deciding a case based on proportionality, on a proportionality review of the record, and as we said earlier, later in Solem versus Helm, the same type of reasoning was used. Each criteria set forth in Solem versus Helm was supported by Enmund as an example, and of course the argument that due process requires in Mississippi some jury finding is not persuasive, because as we possibly said earlier, that Spaziano held that there was no constitutional right to a jury determination of sentence, and therefore Enmund requires only that the death penalty cannot be imposed under the defendant's -- unless the defendant's individual participation justifies it in the given case.

So, we look at these findings found by the state, by the State Supreme Court. We look -- the Fifth Circuit totally ignored the fact that in the sentencing instructions, that they were given the mitigating factor that the defendant was an accomplice in the capital offense, and his participation was relatively minor. They even make the comment in the opinion that the state after this guilt phase instruction gave no other instruction that focused the jury's attention to his culpability in this crime or his participation in this crime. And we --

CHIEF JUSTICE BURGER: We will resume there at 1:00 o'clock, counsel.

MR. WHITE: Thank you, Your Honor.

(Whereupon, at 12:00 o'clock p.m., the Court was recessed, to reconvene at 1:00 o'clock p.m. of the same day.)

AFTERNOON SESSION

12:59 P.M.

CHIEF JUSTICE BURGER. Mr. White, you may resume your argument.

ORAL ARGUMENT OF MARVIN L. WHITE, JR., ESQ., ON BEHALF OF THE PETITIONERS - RESUMED

MR. WHITE: Mr. Chief Justice, and may it please the Court, I think I will attempt to answer Justice Stevens' question at this time. Having reviewed the opinion of the Supreme Court and some of the factors involved there, we would answer it in this way, that the jury finding, of course, was a general verdict, and so we did not know the precise parameters of what they found there.

However, the Mississippi Supreme Court, its findings in two specific instances in the opinion do delineate with great exactitude just what they found, or their interpretation of what the jury found and what they see from the record, and those were in the context of evidentiary sufficiency on the claim of the failure to grant a directed verdict as to manslaughter, where they found that Bullock was present, aiding --

QUESTION: What are your citations? Are you referring to -- what?

MR. WHITE: To the opinion in the Mississippi Supreme Court.

QUESTION: Is that -- what is your citation?

MR. WHITE: It is the appendix to the petition.

QUESTION: Right. What page was that?

MR. WHITE: A-81 and 2.

QUESTION: Okay.

MR. WHITE: And on -- the second reference will be A-117.

QUESTION: Okay. Thank you.

MR. WHITE: Where the Court found in the context of that manslaughter instruction that he was present, aiding, and assisting in the assault upon and slaying of Dickson and then in its proportionality review analysis it again makes the finding that the appellant was an active participant in the assault and homicide.

QUESTION: I am sorry, Mr. White, I didn't get your second reference.

MR. WHITE: A-117.

QUESTION: 117?

MR. WHITE: Right. And that is in the appendix to the --

QUESTION: Oh, yes. Thank you very much. That is -- the appellant was an active participant in the assault and homicide committed upon Dickson. Those two findings there would be what we would contend was the finding of the Supreme Court of Mississippi in those cases.

QUESTION: Thank you.

MR. WHITE: The issue, of course, here is not whether it was a jury finding, but whether there is in fact evidence in the record of intent or evidence in the record that the person killed, attempted to kill, intended to kill, or contemplated that lethal force would be used.

The opinion in Enmund, we contend, was to cull out those people who did not have those, and there were very few, as pointed out in the opinion in Enmund, that fit into this category. The Fifth Circuit, we contend, has engrafted a constitutional requirement that these must be found by the jury that we do not feel comports with this Court's opinion in Enmund.

And in conclusion, we would submit that the view of determination of the Enmund factors and criteria used by the Eleventh Circuit is much more consistent with the ruling than the Fifth Circuit holding that they must be made by a jury.

We would reserve the remainder of our time for rebuttal.

CHIEF JUSTICE BURGER: Very well.

Mr. McLaughlin.

ORAL ARGUMENT OF JOSEPH T. MC LAUGHLIN, ESQ., ON BEHALF OF THE RESPONDENT

MR. MC LAUGHLIN: Mr. Chief Justice, and may it please the Court, we seek affirmance of the Circuit Court's determination that Crawford Bullock could not lawfully be sentenced to death for capital murder where the jury was not instructed to find and did not find that he killed, attempted to kill, intended to kill, or contemplated the use of lethal force.

This result, dictated by this Court's decisions in Enmund, Lockett, Mullany, and others, means simply that the defendant may be resentenced properly under the amended Mississippi death penalty statute which specifically requires the jury to find that the defendant's conduct satisfies one or more of the Enmund factors before it may determine whether to impose the death sentence.

Crawford Bullock's death sentence was imposed and upheld by the Mississippi Supreme Court prior to this Court's decision in Enmund, and it was not based on his personal responsibility or his moral guilt.

There are at least four things this case is not about, and I would like to start by exploring them briefly. First, we seek no limit on the power of the state to define crimes, including felony murder, but we do urge consistency with this Court's own view expressed in Lockett where the Court said states have authority to make aiders and abetters equally responsible as a matter of law with principles or to enact felony murder statutes, but the definition of a crime does not automatically dictate the proper penalty.

Second, we seek no redefinition or refinement of Enmund which in words of plain meaning and common understanding prohibits, we would submit, the execution of one who does not kill, attempt to kill, intend to kill, or contemplate that lethal force would be used.

QUESTION: How do you place in this whole panorama of the findings with respect to the overwhelming evidence? You are addressing primarily the charge, I take it.

MR. MC LAUGHLIN: I am addressing the charge, Your Honor, but I also feel and will address the point that the Mississippi Supreme Court did not make findings with respect to the ability or the eligibility of Crawford Bullock to be sentenced to death.

The Mississippi Supreme Court discussed in the two places cited in the appendix by counsel for the petitioner a concept of accessory or aiding and abetting liability. Indeed, their opinion came down before the Enmund decision. They did not purport to and did not make any Enmund findings.

I think it is very important, frankly, to focus on what the Supreme Court of Mississippi did say. First, with respect to the sentence on Page A-81 cited by counsel for the petitioners --

QUESTION: Eighty-one?

MR. MC LAUGHLIN: Eighty-one, Mr. Chief Justice. The sentence that was read was that the appellant was present, aiding, and assisting in the assault upon and slaying of Dickson. Now, just prior to that, the Court lays out the standard by which it reaches that conclusion, which I submit is not a finding. Just above that, on that very same page, the Court says that in passing upon a motion for a directed verdict in a criminal case, beginning now to read at the top of Page A-81, "All evidence most favorable to the state together with reasonable inferences are considered as true, and evidence favorable to the appellant is disregarded."

That, I submit, is perhaps a standard of appellate review. It is not a finding weighing the evidence that this particular person meets any one of the Enmund criteria.

Secondly, the Mississippi Supreme Court at Page A-117, Your Honors, in talking about the participation, the active participation of Crawford Bullock in the assault and homicide was talking about the statutory crime of felony or capital murder under the law of Mississippi. We do not challenge the guilt of Mr. Bullock. We have not challenged the sufficiency of the evidence to support his guilt of the crime of capital murder.

I think it is important to put in context what the Mississippi Supreme Court said, because on Page A-116, the Mississippi Supreme Court introduced their conclusion that Mr. Bullock was an active participant in the homicide by saying, and I quote from the middle of the page, "The law is well settled in this state that any person who is present, aiding, and abetting another in commission of a crime is equally guilty with the principal offender."

It is fair for the Mississippi Supreme Court to have said --

QUESTION: I am not quite sure what your point is about what you have just read.

MR. MC LAUGHLIN: My point, Mr. Chief Justice, is --

QUESTION: They are merely stating a general proposition of Mississippi law, are they not?

MR. MC LAUGHLIN: Yes, I believe that is correct, and they are not making the specific kind of finding required before someone may be put to death.

QUESTION: What about the top of 117 and Page 81?

MR. MC LAUGHLIN: Your Honor, that sentence at the top of Page 117 follows exactly upon their statement, if you will, of the law of Mississippi, namely that a person who aids and abets in the commission of a crime, here either the crime of robbery, of which the defendant, Mr. Bullock, was found guilty --

QUESTION: The statement from the court on Page 117 is not a general statement of law. They are statements with respect to the evidence on this record, on the record then before them.

MR. MC LAUGHLIN: Your Honor, I don't think the Mississippi Supreme Court was purporting to review the evidence on the record before them. I think --

QUESTION: Well, then, what did they mean when they said the evidence is overwhelming that appellant was an active participant in the assault and homicide committed upon Mark Dickson, and so forth?

MR. MC LAUGHLIN: I think, Your Honor, they were simply restating the law of Mississippi that a person who aids and abets in the commission of a crime, and here the crime could either be robbery or the crime of capital murder, which does not require and did not require in this case that Crawford Bullock kill, attempt to kill, intend to kill, or contemplate the use of lethal force. It only required, and this is where the jury charge, I think, is most instructive, because it is based on the statute, which of course is what the Mississippi Supreme Court is talking about. It only required that the man be present, present at the scene, that he consent to the killing.

QUESTION: Are we reading the same page here?

MR. MC LAUGHLIN: Yes, Your Honor, I believe we are.

QUESTION: May I read it to you? "When the evidence, " and I assume they are referring to the record, "is overwhelming that appellant was an active participant in the assault and homicide," that is not a general statement of law. It isn't a statement of law at all. It is a statement of what the record told the Supreme Court of Mississippi.

MR. MC LAUGHLIN: Your Honor, if they were purporting to state the fact, and the fact they were purporting to state was that Mr. Bullock killed, attempted to kill, intended to kill, or contemplated that lethal force would be used, they didn't say.

What they said was, under the law of Mississippi, a person who aids and abets in the commission of a crime is equally guilty. What the Mississippi Supreme Court also said was that Rickie Tucker beat and killed the deceased. They did not say that Mr. Bullock struck or beat or killed the deceased. What they said was, he was present, and under the law of Mississippi, as an aider and abetter --

QUESTION: No, they didn't say he was present. They didn't say that at all. They said he was an active participant. I am confused about --

MR. MC LAUGHLIN: Your Honor, he is a statutory participant in the crime because he was present.

QUESTION: I think we need an interpreter here, because what I read in the English language here isn't what you are telling us.

MR. MC LAUGHLIN: Your Honor, the Mississippi Supreme Court said that they accepted Crawford Bullock's statement of the facts, and indeed they based their statement of the facts upon them. They said further that his testimony at the trial was consistent with the statement that he gave to the police, which is in the record.

In that statement, Mr. Bullock said he was present. He did not strike the deceased. Rickie Tucker struck the deceased, and he killed him.

QUESTION: Go back to 81. This is the Supreme Court of Mississippi speaking, their evaluation of the record. The evidence is overwhelming that appellant was present, aiding, and assisting in the assault upon and the slaying of Dickson, and in removing and discarding his wallet and the personal effects and so forth, disposing of his body.

MR. MC LAUGHLIN: I would submit respectfully that that is a restatement of the law of Mississippi, and the law of Mississippi is that a person is deemed to be equally guilty with the principal, with the person who commits the crime, if he is present and he aids and abets in the offense.

The offense here is either the robbery or the capital murder. Neither of those offenses requires a finding by anyone, and the Mississippi Supreme Court, I submit, did not make such a finding, that Mr. Bullock killed, attempted to kill, intended to kill, or contemplated the use of lethal force.

QUESTION: Counsel, are you defending the Fifth Circuit's opinion?

MR. MC LAUGHLIN: Your Honor, yes, I am defending the Fifth Circuit's opinion, because it concludes --

QUESTION: Well, it certainly never addresses the finding of the Mississippi Supreme Court or whatever you want to call those words.

MR. MC LAUGHLIN: It does not address the description by the Mississippi Supreme Court. That is correct.

QUESTION: Do you think it should have?

MR. MC LAUGHLIN: Well, Your Honor, perhaps in the perfect world it should have, but I think the point here is that there was no --

QUESTION: Well, it seems to me this leads me to the other -- suppose that there was no doubt that the Mississippi Supreme Court made the finding that Enmund, that you -- even you would concede Enmund requires, that they made the finding. Would you be here then?

MR. MC LAUGHLIN: Yes, Your Honor, we would be.

QUESTION: So you would be saying that the jury must make the finding?

MR. MC LAUGHLIN: I would be saying that the jury must make the finding, depending upon the facts of the individual case, the charge that is given to the jury, the nature of the crime --

QUESTION: You would say an appellate court finding, even though it reads right on Enmund, just doesn't satisfy the constitution. Is that it?

MR. MC LAUGHLIN: I would say, Your Honor, here, first of all, it doesn't satisfy Mississippi's own law. It doesn't satisfy the Constitution because it doesn't satisfy Mississippi's law.

QUESTION: That isn't what I am asking.

MR. MC LAUGHLIN: Secondly, I would say it does not satisfy the Constitution of the United States unless --

QUESTION: Why not?

MR. MC LAUGHLIN: Because, Your Honor, it is our position that the Enmund findings, the establishment of the threshold beyond which one must ask before one can be eligible for the sentence of death, is like, is equivalent to the component, an element of the crime which the jury must find for the reasons this Court has set forth over time as to why the jury is an important protection. But I do think it is important to note here --

QUESTION: Well, you mean it would be unconstitutional for a judge to be authorized to hold the sentencing hearing?

MR. MC LAUGHLIN: No, Your Honor. I was --

QUESTION: He would be making these very findings.

MR. MC LAUGHLIN: Not necessarily. I was attempting --

QUESTION: Well, he would, if he was going to impose the death sentence in this. If a single judge had been authorized to hold a sentencing hearing and impose the sentence, he would have had to make the Enmunds finding if he was going to --

MR. MC LAUGHLIN: Your Honor, under our argument that Mississippi law compels this result, that is not necessarily true.

QUESTION: Well, I know, but Mississippi law isn't going to decide our constitutional issue.

MR. MC LAUGHLIN: Well, it is the Fourteenth Amendment which applies the law of Mississippi or requires, since Mississippi has protected this interest, that the jury do it.

QUESTION: What case have you got to support that statement?

MR. MC LAUGHLIN: Well, Your Honor, I believe when one looks at Hicks versus Oklahoma, the Fourteenth Amendment was their reply to protect a state-protected liberty interest, and that is the case upon which we were relying, but I think it is important to clarify one thing, if I may, in response to your question.

It is not necessarily the case that an Appellate Court or a reviewing court, let us say, could not find that Enmund was satisfied, and let me explain. First, it is not necessary that the questions that the Mississippi law now requires be asked in every capital murder case, it is not necessary that those questions precisely be asked outside the state of Mississippi.

If, for example, the statute under which the defendant was indicted and convicted required the jury to find that the person intentionally or with malice aforethought took life. The statute takes care of it. Enmund is satisfied because the man was charged with intentional killing.

Second, it is not necessary that these questions be asked, or that the jury be involved specifically. If, for example, the defendant was the sole actor in the crime, and this is undisputed, because there a jury verdict, even a general verdict of guilt under a felony, a classic felony murder statute, necessarily means that the defendant took life.

Now, it doesn't answer the question raised by the amicus as to whether or not it is required constitutionally also to find that there was an intentional taking of life, but putting that question aside, if there is a sole actor in any of these cases in the Eleventh Circuit, the Wainwright cases, et cetera, are cases where the only person involved in the crime is the person whom the jury convicts.

It would not be necessary in those cases to go back and resentence and ask question which are really pointless, because the jury has already made the determination which satisfies Enmund if Enmund does not require more than just a killing.

Third, if the defendant was convicted of felony murder but the jury found an aggravating circumstance beyond a reasonable doubt that the defendant intentionally killed during the commission of the predicate felony, it would not be necessary in my view to go back and require of the questions that Mississippi has decided must be put in every case could be put in other states as a matter of constitutional law. Enmund would be satisfied, and indeed there are statutes which are quite explicit on the point. Indiana, which is an amicus in this case, has a statute --

QUESTION: How do you read the Court of Appeals for the Eleventh Circuit decisions? Do they say that the Enmund finding may be made by an Appellate Court?

MR. MC LAUGHLIN: The Ross case comes out of Georgia, Your Honor, and the Georgia Supreme Court has now said that the jury must find specifically either capital or malice murder.

QUESTION: Now, how about my question?

MR. MC LAUGHLIN: But putting that aside, Your Honor, the Eleventh Circuit case, the Ross case specifically, does conflict on its face with the holding in Bullock, because it says the jury finding is not required. However --

QUESTION: Why does it -- the Court of Appeals for the Fifth Circuit did not even address it.

MR. MC LAUGHLIN: No, that is true, Your Honor. It didn't. But it is a conflicting decision in the sense that the two -- on the question of the -- the role of the jury cannot be put side by side and said to be consistent, but --

QUESTION: Anyway, you agree that the Eleventh Circuit has held that the Appellate Court may make the finding.

MR. MC LAUGHLIN: Yes, I believe that is correct, Your Honor.

QUESTION: And you disagree with that?

MR. MC LAUGHLIN: I disagree with it depending on the facts, because as I was about to say in addition to the three exceptions I have already given, I believe there are at least two more exceptions to the rule that the questions must be put to the jury at least in a state like Mississippi, which requires those questions to be put.

If, for example, defendant concedes one of the Enmund factors, and this is true certainly in the Fourth Circuit case, which is cited in the briefs, Ross -- Roach, excuse me, against Martin, if the defendant concedes one of the Enmund factors, then again there is no point in requiring on resentencing under Enmund a jury finding specifically addressed to the Enmund question, because the defendant has conceded it. It is not an issue.

And finally I would say there has to be an exception to take into account those cases, and I think this exception would have to be carefully and with great measure applied. But to take into account those cases where, for example, the forensic evidence is overwhelming, the testimony is overwhelming that it was the specific defendant who killed or intended to kill or attempted to kill or contemplated that lethal force would be used, where all of those factors come together to such a point, as Judge Clark said in concurring in dissenting in the Eleventh Circuit case that even he would concur in the result, although he disagreed with the reasoning of the Eleventh Circuit, because, he said, based on the factors as he knew them, that was the right result. I don't know what the trial record in Ross would show. It may well be there is conflicting evidence there, and if so --

QUESTION: Mr. McLaughlin, it seems to me that your last example is a concession, whether you intended it to be or not, that it is all right for a Federal Court of Appeals to make the required finding.

MR. MC LAUGHLIN: Well, Your Honor, the petitioner here has never argued that. It has never been an issue anywhere in the Fifth Circuit or here.

QUESTION: What is your reason? You give a lot of reasons why the rule doesn't do much harm and so forth, but why do you contend, Spaziano having been decided the way it was, why do you contend that a judge or appellate court may not make a required finding? What is the reason for your position?

MR. MC LAUGHLIN: Well, Your Honor, in Mississippi, the reason for it is that the legislature determined long before Mr. Bullock was sentenced that the jury had to make the findings both at the guilt stage and at the sentencing stage, and that they had to sentence the defendant.

QUESTION: So your answer is, it is a matter of Mississippi law, this is the appropriate factfinder on this issue.

MR. MC LAUGHLIN: It is, Your Honor.

QUESTION: But if Mississippi had a different law, you might not --

MR. MC LAUGHLIN: If Mississippi had a different law, then we would be pushed, frankly, to our position, that the due process clause requires as a matter of constitutional law, regardless of the state statute, that the jury make the finding, because Appellate Courts --

QUESTION: The Fifth Circuit didn't rely on Mississippi law, did it?

MR. MC LAUGHLIN: No, it didn't, Your Honor. It never considered the issue. It was briefed, but it wasn't reached by the Fifth Circuit.

QUESTION: I don't see how they could make that argument and then say there are some cases that are so clear that we sitting in the Court of Appeals in the federal collateral review status in effect --

MR. MC LAUGHLIN: Well, Your Honor, I am not advocating it, and I would not push the Federal Court, frankly, into that business, and as I say, petitioners never argued it, it has never been an issue in the case, and we certainly don't think it would be the appropriate standard to apply. All I am saying is that I think Judge Clark recognized in his concurring and dissenting opinion in the Ross case that there may be some other exceptions where the Court will develop over time, if it is appropriate, some concept of harmless error, error beyond a reasonable doubt, but I am not advocating that position, and I am not suggesting it is presented by this record, because this record, if it presents anything, presents a sharp dispute.

There is no question but that the evidence, even as construed in a statutory or other fashion by the Mississippi Supreme Court, supports the conclusion that Rickie Tucker killed the deceased, and there is no finding and no suggestion of any finding anywhere, either by the jury or by the Mississippi Supreme Court that Crawford Bullock had any intent to take the life of Mark Dickson.

Indeed, the question here is whether the jury must make one or more of the Enmund findings before an individual convicted of felony murder may be sentenced to death in a state where all capital sentence findings must be made by the jury. We don't seek and don't believe it is necessary to attack in any way the holding in Spaziano.

If there are states, as there are, that protect and preserve the role of the judge in the sentencing process, the role we suggest, which is a narrow one, does not require any other result. It simply requires either that the case meet one of the exceptions that I outlined or that the jury make findings to push that defendant across the constitutional threshold where he is at least eligible to be sentenced to death.

It does not require that he be sentenced to death, and it does not preclude the role of the judge in deciding whether to sentence that person to death. Indeed, it does not preclude the judge from overruling, as the judge did in the Florida case of Spaziano, a recommendation by the jury that the defendant be sentenced to life.

It simply says that you must have a finding by the jury, at least in those states where the jury must make all capital guilt and sentencing findings as a matter of constitutional due process.

I think the jury instructions here are well worth spending a bit of time on, because it is certainly our position, and we thought frankly that petitioner had abandoned his argument. There is no mention of it in his brief. It is certainly our position that the jury findings here did not, did not meet in any way the Enmund requirements. The reason for that is that the jury instructions are at best conflicting and at worst positively misleading.

The jury is told, and not told in a vacuum, it is told based on a statute which defines capital murder as a killing when done with or without any design to effect death by any person engaged in a robbery or other predicate felony. The jury was told by the prosecutor before it ever reached the stage where it was charged that we do not have to prove "that he, Crawford Bullock, killed or robbed this man. All we have to show is that he aided and abetted," and that is exactly, I submit, what the Mississippi Supreme Court was talking about when they talked about accessorial or aiding and abetting liability.

But when you come to the charge, I think it is important to look at Charge 15. It is repeated in its entirety on Pages 10 and 11 of respondent's brief in this matter. The jury was not required to find that Crawford Bullock killed or attempted to kill or intended to kill or contemplated the use of lethal force.

Indeed, quite to the contrary, the jury was told that if Mr. Bullock did any act, any act which was prior to, immediately before, leading up to, connected to the commission of the crime, whether that act was done with or without any desire to effect death, then by consenting to the killing, by being there, by being geographically proximate, if you will, to the killing done by Rickie Tucker, then Crawford Bullock could be sentenced to death.

We submit that does not meet and cannot meet the Enmund standard. It could, for example, mean on the facts of this case that the jury thought it was enough that sitting in a two-door automobile, which this automobile was, Crawford Bullock opened the door at some point and Rickie Tucker stepped out of the automobile and chased the driver, ultimately the victim in this case, Mark Dickson before he beat him to death.

That certainly, particularly when it is told, when the jury is told that it doesn't have to be an act with any design to cause death, that, I submit, would not meet the standard of Enmund or any other standard requiring some certainty in the capital sentencing process before the ultimate punishment of death is inflicted.

The jury was told, as counsel for the petitioner pointed out, in another instruction, in a conflicting instruction, that it could find Mr. Bullock guilty of capital murder and then sentence him to death if he actually killed, but that instruction was directly contradicted by the prior instructions, which said that intent didn't matter, design didn't matter. Consent, whatever that was, consent was the key, and any overt act leading up to the Commission of the crime by another. That, I submit, is not a sufficient ground for this jury or any jury, at least in the state of Mississippi, to find that this person killed or attempted to kill or intended to kill or contemplated the use of lethal force.

What was the jury to think, for example, about the meaning of the term "consent?" Was it to think, because consent is not defined anywhere in this charge by the Court, was it to think that it meant to agree somehow, or was it meant to think that consent meant, as the dictionary tells us it can mean, acquiescence, tacit agreement, or restraint of opposition in accepting something about which one has reservations?

Mr. Bullock was certainly no hero in this exercise, but he had a cast on his leg which was severely injured, and he was on crutches. Mr. Bullock was struck by Rickie Tucker with a bottle, and his hand was severely injured. He was in the hospital for a week after this incident.

He was not in any condition, let us say, to do anything necessarily. He said, he testified, and the Mississippi Supreme Court said his testimony was consistent with his statements to the police, and was the basis upon which they recounted the facts in their opinion. He said he yelled at Rickie Tucker to stop hitting Mark Dickson.

QUESTION: But he was holding him in the meantime so that he could be hit with the bottle, wasn't he?

MR. MC LAUGHLIN: Your Honor, no. He testified --

QUESTION: That is what the evidence is.

MR. MC LAUGHLIN: Your Honor, I respectfully submit that is not what the evidence is. There was no dispute, and two of the police investigating officers testified that Crawford Bullock's statement matched the facts to a T. There was no blood from Mr. Bullock, who was bleeding profusely, found on the concrete blocks which were used to kill Mr. Dickson by Rickie Tucker. There was no blood found on the ground or in the depression where the body of the victim lay, despite the fact that Mr. Bullock was bleeding profusely.

As Justice Garwin said, concurring with the Fifth Circuit, the version of the facts -- he did talk about the facts, although the rest of the court did not talk about the facts in any great detail. The version of the facts was perfectly consistent with the notion that Mr. Bullock, whether he intervened as he testified, to stop the fight and was not successful, or whether he intervened for some other purpose, and there is no finding on that anywhere, there is no evidence to suggest that he held this person and this person was killed when he was holding him. Indeed, all the evidence is the other way, and the police so testified.

QUESTION: What difference would it make whether he died when he was holding him or five minutes or later or an hour later?

MR. MC LAUGHLIN: Your Honor, the --

QUESTION: The evidence also shows, and is not disputed, that he helped tie the concrete blocks on the body to sink it into the lake.

MR. MC LAUGHLIN: Your Honor, the evidence does show that, and the post-crime conduct is something which juries look at to decide whether it has probative value all the time, and we are not defending the conduct --

QUESTION: We can't even be sure that the fellow was dead by that time. He might have still been alive.

MR. MC LAUGHLIN: Your Honor, the pathologist testified here, and there was no dispute about this, that Mr. Dickson was killed almost instantly by the blow on the head from the cement blocks --

QUESTION: Which was it, the bottle or the cement block?

MR. MC LAUGHLIN: Your Honor, it is absolutely clear it was the cement block. The bottle disappeared. It was never found. It was not introduced into evidence. The bottle hit Mr. Bullock and broke open the back of his hand. He then retreated, and his blood was found first 15 feet away from the scene, and then 50 yards away from the scene. He says he was running away. Whatever the facts, whatever the version of the facts would be, those facts were accepted, and they were not disputed, Your Honor, by the Mississippi Supreme Court or by the witnesses who testified at trial.

QUESTION: Obviously the jury didn't believe him when he said he was running away.

MR. MC LAUGHLIN: Well, Your Honor, we don't know what the jury believed, because they were told it was enough if he did any overt act with or without the design to cause death, as long as he was involved in the robbery, which the jury found he was, and he consented to the killing, and I submit that is not the same as a finding that he killed, attempted to kill, intended to kill, or contemplated the use of lethal force.

I think perhaps more importantly than my submission is this Court's teaching in Francis against Franklin and other cases that certainly in this kind of a case, in a death penalty case, the extreme punishment, that we have to be sure that the jury found on a constitutionally permissible basis that this man was entitled to be sentenced to death.

If Francis v. Franklin means anything, I submit it means that. If there are conflicting instructions, we can't allow a death penalty, the extreme punishment, to stand in the face of the possibility that the jury was confused.

Now, petitioner's counsel referred to aggravating and mitigating circumstances. I think it is important to note here that we have no record of what mitigating circumstances the jury found. They may well have found that Mr. Bullock was an accomplish whose participation was relatively minor. There is no written record of the mitigating circumstances, if any, found by this jury.

QUESTION: Did you appear in the Court of Appeals?

MR. MC LAUGHLIN: Yes, I did, Your Honor.

QUESTION: Was the argument -- was the Mississippi Supreme Court's treatment of the evidence urged to the Court of Appeals in terms of Enmund?

MR. MC LAUGHLIN: Yes. It was argued. It was fully briefed. Yes, Your Honor.

QUESTION: It was argued by your opponent that the Mississippi Supreme Court's finding satisfied Enmund?

MR. MC LAUGHLIN: Yes, I believe it was, because we certainly argued to the contrary.

QUESTION: And yet the Court of Appeals never addressed the issue at all?

MR. MC LAUGHLIN: The Court of Appeals did not address it. No, Your Honor, that is correct.

Your Honor, it has been suggested that the Mississippi Supreme Court has decided that the law as we urge it, at least as it relates to the law of Mississippi, should not be and cannot be applied retroactively. It is, of course, our position that Mississippi law has always required that capital sentencing findings be made by the jury. That is what the statute says.

Most recently, Your Honor, in a case which was not available to us when we filed our briefs. It is a case entitled Gray versus the State of Mississippi. It is found at 472 Southern 2nd 409. The Mississippi Supreme Court had a recent opportunity to consider the Enmund findings, the amended statute, which we say would control if this Court affirmed and sent Mr. Bullock back to be sentenced, and we recognize double jeopardy does not attach. He could be resentenced to death if the jury found the appropriate findings.

But in that case, the court considered what would happen to Mr. Gray, because Mr. Gray had been convicted and sentenced to death prior to the amendment of the Mississippi death penalty statute requiring the jury specifically to make the Enmund findings in the language of Enmund, and what the court said, I think, was quite instructive at 472 Southern 2nd 409.

The court said that the instructions given to the jury to make Enmund -- require the jury to make Enmund findings because for Gray to be found guilty and sentenced to death he had to be found by the jury to have unlawfully, wilfully, and feloniously, and of his malice aforethought, killed and murdered. Then the court went on to define malice aforethought as a predetermination to commit an act without legal justification or excuse.

I submit that certainly supports the notion that the Mississippi Supreme Court would apply this if it were properly presented to them. He couldn't present it to them because of the timing of the decision, but Mr. Bullock should be sent back to Mississippi to be resentenced.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. White?

ORAL ARGUMENT OF MARVIN L. WHITE, JR., ESQ., ON BEHALF OF THE PETITIONERS - REBUTTAL

MR. WHITE: Just a point or two to make some clarifications. The evidence in the Mississippi Supreme Court -- in the evidence before the trial court there as far as the blood and everything, the testimony was that they couldn't make a determination whose blood that was on the rocks, and further, that we did not have these findings or the idea of what these findings, the specific language these findings were to be made in until some two years after Bullock was decided, three years after it was tried.

So, the actual wording of the findings of the Mississippi Supreme Court as the opponents contend was not in the language of Enmund I don't think would have any bearing here. We do have a finding that if he was an active participant and that active participation was holding someone by the hair of the head while somebody else beat him with a bottle or hit him with a bottle, and he, of course, at that time was injured himself, and so we do contend that the evidence is clear that Mr. Bullock was right in the middle of all this, and is certainly a candidate for the death penalty.

QUESTION: General White, could I just ask you, because I am a little confused on it, is it correct, as your opponent says, that the evidence is also clear that he was not killed by the bottle, but he was killed by the concrete block?

MR. WHITE: He was killed by the concrete blocks being dropped on his head.

QUESTION: Which happened after the striking with the bottle.

MR. WHITE: Well, as a part, as a continuation after Bullock was injured by the bottle hitting his hand as he was hitting the man's head.

QUESTION: Did Bullock have any part in the act of hitting with the concrete block?

MR. WHITE: The evidence does not show so.

QUESTION: I see.

QUESTION: It does show that he helped use the concrete block to tie him up with a hose so that his body would sink.

MR. WHITE: Yes, he was the one who suggested the place to get rid of the body, the whole scenario after the crime of getting rid of the body.

QUESTION: Do you consider -- I am sure there are very persuasive fact, and there are certainly very troublesome facts, but are they relevant to the Enmund issue, the post-death facts of the way they disposed of the body?

MR. WHITE: Well, traditionally, I think we look at someone's intent by their actions surrounding the crime. We determine intent when we don't have -- we very seldom have the case where the guy, a criminal comes in and says, yes, I intended this and this and this. In that case where we don't have that, we have got to look at surrounding facts.

QUESTION: But I just want to be -- you are suggesting that the post-death facts tend to substantiate the conclusion that Bullock intended the death to occur.

MR. WHITE: Yes, sir.

QUESTION: I see.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 1:36 o'clock p.m., the case in the above-entitled matter was submitted.)