Howell v. Mississippi - Oral Argument

Argument of Ronnie M. Mitchell

Justice Stevens: We'll hear argument in Howell against Mississippi.

Mr. Mitchell.

Mr. Mitchell: Justice Stevens, and may it please the Court:

The Court has directed us to address, in addition to the question raised in the petition for writ of certiorari, the following question.

Was petitioner's Federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 United States Code, section 1257?

Accordingly, we begin by addressing that question and answering it affirmatively.

Here, Howell maintains, one, the standards for adjudicating State and Federal claims of this particular type are identical--

Justice Ginsburg: Where--

Mr. Mitchell: --where they're labeled as such--

Justice Ginsburg: --where was that... where was that maintained?

Because I thought that below, all there were this was a... was it a lesser-included offense under State law, and I didn't see below any reference to the Federal Constitution.

Mr. Mitchell: --Justice Ginsburg, we believe that the rule in Beck establishes that State law must be viewed and State law is the determiner of whether an offense is a lesser-included offense, but Federal law, the Federal Constitution determines whether, as a matter of due process under the Fourteenth Amendment and Eighth Amendment concerns, whether an instruction must be given as a Federal constitutional matter.

Justice Souter: And... and the standards under Beck are different from the standards under the roughly comparable State rule, as I understand it, because under the State rule, the lesser offense need not be an included offense, in the technical sense; and number two, there need not be, in the absence of a further instruction, a... a limitation to the jury to two choices, death or acquittal, so that unless one is very careful to raise the Federal standard, simply raising the State standard wouldn't do it.

Mr. Mitchell: Respectfully, Justice Souter, we would submit that Mississippi's own law says that it embraces the Beck standard and that Mississippi's own law--

Justice Souter: Sure, it embraces it because it's broader, which means that if you raise... if you... if you make a claim under the State standard, you are not necessarily making a claim under the narrower, more restrictive Federal standard.

Mr. Mitchell: --We would respectfully submit that... that in Mississippi, for example, as contrasted with the statutory scheme that was present in Hopkins, the Nebraska scheme, in the Mississippi scheme, Mississippi has held that simple murder is a lesser-included offense, and therefore, by definition that offense at least mirrors what is required under Beck.

Now, the question of whether some other lesser--

Justice Souter: What about... what about the... the Beck condition that in the absence of the instruction, there must be a choice between... the jury must be confined to a choice between death and acquittal?

Mr. Mitchell: --In--

Justice Souter: That's... that's not the same in the State's scheme, is it?

Mr. Mitchell: --Well, we believe that... that it is the same.

And in fact, the... the case that the State cites, State v. Goodin, explains that.

The representation of Goodin in the State's brief, as it appears in the respondent's brief at page 23, we contend is not faithfully representative of what the Court said in that case.

Justice Souter: Is... is Goodin the case that... that stands for the proposition that under... under State law, the... the jury has an... an option to sentence for life, as... as well as... as to impose the death sentence?

Mr. Mitchell: Goodin is the case that the State cited for that purpose, but an analysis of what the Mississippi Supreme Court actually said at page 656 of the Southern Reporter, 787, is this.

The Goodin jury did not face the dilemma of the Beck jury.

Here, the jury's alternatives in the guilt phase were to convict Goodin of capital murder, simple murder, or to acquit him, which is the very purpose that the later cases... and Beck itself explains.

Schad, for example, explains that the reason for the Beck determination was that presenting only the option of convicting of a capital offense or acquitting was not constitutionally permissible.

Justice Souter: So... so I just want to make sure I know where we stand.

You're saying that the assumption I was making, that under Mississippi law, in the absence of an instruction for a lesser offense, the jury has an option not only to acquit or to impose the death penalty, but an option of life with or without parole, that assumption is simply incorrect as a... as a fact about Mississippi law.

Mr. Mitchell: No, I do not believe that is incorrect.

I'm sorry, Your Honor.

What I do believe is correct is that under Mississippi law, the jury, because of the bifurcated nature of the... of the case, is given at least the preliminary reference or preliminary instruction that if there is a guilt verdict, then there will be a sentencing phase.

But we submit that that is a distinction that this Court has not adopted, nor have other courts adopted because in this situation--

Justice Souter: But it takes you out of Beck, at least arguably, doesn't it?

The... the question is, have you raised something that is necessarily on all fours with Beck?

And given this sentencing scheme, we can't say that simply raising a State claim necessarily raises the Beck claim.

Isn't that true?

Mr. Mitchell: --Your Honor, we would respectfully disagree with that position because of the analysis that the Court has undertaken, for example, in Hopkins and because of the analysis in Spaziano v. Florida.

In those cases, they were presented with schemes in which the jury did not, of necessity, impose the death penalty.

However, the jury was confronted with exactly the same position--

Justice Souter: But the consequence of the jury verdict was... was the death penalty.

Mr. Mitchell: --Well, the consequence of the jury verdict may have been the death penalty.

For example, in Spaziano, the... the jury returned a verdict of guilty.

The jury recommended life, but the judge imposed a sentence of death nevertheless.

In the Hopkins case, the... a three-judge panel then imposed the death penalty.

Those... those differences in sentencing schemes we do not believe separates the rationale of Beck which is the danger of affecting the jury verdict by being faced with the dilemma of either convicting of a capital offense or acquitting.

Justice Scalia: Mr. Mitchell, my... my problem is even more fundamental than Justice Souter's.

Conceding that the rule in Mississippi is exactly the same as the Federal rule in Beck, it doesn't seem to me that arguing Mississippi law, just because it happens to be the same as Federal law, amounts to raising a Federal question.

Let's assume you have a... a State law against wire-tapping.

It is unlawful.

And you... you come in and you ask that the evidence be... be excluded because it's contrary to the State law.

Have you raised a... a Federal... a Federal question when all you cite is the State law, even though the effect under State law is the same as the Federal effect under the Fourth Amendment?

It's not my understanding that you've raised a Federal question.

Mr. Mitchell: I do not believe that I would have unless in that particular State, if its highest court had said, we embrace the same standard and we apply the same--

Justice Scalia: That's all it takes for the New York State Supreme Court, for example, to have said, well, you know, our... our wire-tap statute does the same thing as the Fourth Amendment does anyway?

That's all it takes?

Mr. Mitchell: --I believe--

Justice Scalia: And thereafter, all you have to do is cite the New York State statute, and you've raised a Federal question.

Mr. Mitchell: --No, respectfully, Your Honor.

However, if the State supreme court has adopted not only the same purpose, but the very language and has, in effect, said, our ruling in these cases is controlled by the same provision of law, whether a... a decision of this Court, as in the Beck standard that we believe Mississippi has adopted, or if the court has articulated that the United States Constitution controls this particular provision.

Justice Scalia: Well, I mean, if... but the State standard always has to... has to comply with the Federal requirement, doesn't it?

Mr. Mitchell: It always has to comply with the... with the Federal requirement, but as Justice Souter pointed out, it may be broader, for example, in situations where there might be a right to a... a jury instruction on a lesser-related offense.

For--

Justice Scalia: So all it takes is a... is a single decision by the State supreme court which says that our rule is no broader than the Federal constitutional requirement, and thereafter all you have to do is appeal to State law.

Mr. Mitchell: --Well, while we believe that is minimally sufficient, we believe that thereafter it is important certainly to raise a claim which puts the court on notice of a--

Justice Scalia: Of course--

Mr. Mitchell: --claim.

Justice Scalia: --it does.

Why... why is that... I mean, it seems to me counsel should stand up on his two feet and say, we're raising a Federal question.

Why is that too much of an imposition when the statute requires that you raise a Federal question?

Why do we have to go researching what the State supreme court said several years ago?

Mr. Mitchell: Where... where it is generally understood, as in this case, that the two claims are interwoven, we believe the jurisdiction of this Court, as the Court has said, is plain.

Justice Scalia: So we have to figure out in every case whether the two claims are interwoven.

Do you think... do you think counsel for the defense isn't always going to say that they're interwoven?

Mr. Mitchell: I think counsel for the defense would, indeed, contend that they were interwoven.

Justice Scalia: I don't think it's too much to ask counsel for the defense to say, we are raising a Federal question.

And it solves the problem.

Mr. Mitchell: The... the difficulty in saying that we... that we raise a Federal question is that suppose, in this instance, the trial counsel and appellate counsel, Mr. Lott, had said, the jury in this case is presented with an untenable position, convicting of a capital offense or acquitting.

That's untenable and that raises a Federal question.

Would the State then concede that that was a sufficient assertion of a Federal constitutional claim?

Probably not, and that is because the State contends, just as the amicus brief contends, that this Court should adopt some inflexible rule that is extremely and extraordinarily difficult to apply in the context of, for example, a trial in Mississippi or North Carolina where counsel understands the lifeblood of the rule, the lifeblood even of the Constitution, but cannot at the moment recall the correct citation.

Justice Breyer: I mean, my goodness, all it requires... look, the problem is not a technical problem.

It's a human problem.

A judge is a human being.

He gets the petition.

There are 28 different issues.

That's a lot of work.

He goes down one, two, three, four.

He gets to this issue, which is somewhere hidden among the 28, and what it says is, there should have been a lesser-included offense instruction and it cites three Mississippi cases, which in turn cite one other case, and that... that other case says that the Mississippi rule has constitutional implications and cites Beck.

Well, I mean, if that's supposed to be sufficient, I as a judge would have to, in every one of these cases that's cited in these 28 different issues, start looking up the other cases in Mississippi to see if there's some other place they cite some other case that says something about a Federal case.

I mean, you see it's impossible.

Mr. Mitchell: And... and we would concede that but for the fact that in this particular instance, this particular rule is so clearly identifiable.

Justice Breyer: But it isn't even because, after all, Beck talked about an instruction where the choice was either convict the person of murder, death penalty, or acquit him, and your case happens to involve an instruction which said to the jury, convict him or give him a life sentence or acquit him.

So we don't even know if... if Beck applies to your case.

That's never been decided.

Mr. Mitchell: Well, Your Honor, we would respectfully submit suppose that the... that Howell's counsel here had called this a Schad issue, for example, where a sentencing scheme somewhat similar to the present--

Justice Breyer: I don't even know... I am so ignorant I don't even know if Schad is a Federal case or a State case.

Mr. Mitchell: --And... and--

Justice Breyer: So I guess if he had, he should have said Fed. or U.S. or whatever it is so that I'll know.

Mr. Mitchell: --Or... or suppose--

Justice Breyer: That doesn't seem like such a burden.

Mr. Mitchell: --Or... or--

Justice Souter: I... I wrote it.

[Laughter]

Mr. Mitchell: --But Justice Souter--

Justice Kennedy: Justice Souter was... was a State court judge as well.

[Laughter]

Mr. Mitchell: --Suppose, though, that this were not... were not a... a lesser-included instruction case.

Suppose that what had happened in this case was that Howell had stood before the judge and said, I'm asking for you to appoint counsel, and the judge said, well, under the law of this State, I don't have to do that.

But then Howell had responded, but the Supreme Court says that you do.

Would that then be sufficient to raise--

Justice Breyer: Supreme Court?

Yes, that's probably pretty clear it's Federal.

Mr. Mitchell: --Well--

Justice Breyer: Maybe he meant the State supreme court.

Mr. Mitchell: --Maybe he meant the State supreme court.

Justice Breyer: All right.

I'm saying you don't carry it to extremes.

Don't be ridiculous about it, but that isn't an extreme case we have.

We have which is the case we have, the State, and then three State cases, and then referring to one State case that says that Beck is... is a constitutional implication citing Beck.

I mean, I don't have to be extreme in order to say yours isn't that extreme example.

Mr. Mitchell: No, but we would say... we would say this, Your Honor, that the effort to federalize the claim as was done in the Mississippi Supreme Court was done in an effort to address the instructions as a whole, and--

Justice O'Connor: Well, it isn't even clear here that Beck would have been violated.

As I understand it, in... in Mississippi the jury could have given a sentence less than death despite the conviction.

Isn't that right?

Mr. Mitchell: --We would concede that.

Once the sentencing phase was reached.

Justice O'Connor: Yes.

So I'm not sure if Beck even applies on its own terms.

Mr. Mitchell: It would be our contention, Your Honor, that... that Spaziano v. Florida, that Schad, and the cases following Beck, Hopkins v. Nebraska even would, of necessity... or Hopkins v. Reeves... I'm sorry... the Nebraska scheme... would, of necessity, report to the court the continuing vitality of Beck even under these circumstances, but it... it is a matter that we believe was at least made fairly and reasonably presented to the court.

Justice Ginsburg: Mr. Mitchell, what gives me pause is that there are Mississippi cases... you no doubt know them... where the court has seemed to think that the Federal issue under Beck was discrete from the State issue.

So I forgot the name of them, but one of them was striking because it says this doesn't run afoul of Beck, and then it says, now we turn to Mississippi law on lesser-included offense.

And it... the... the State supreme court treated those two as discrete.

So when you just say lesser-included offense, why should the Court assume that you're talking about one rather than the other when the Mississippi Supreme Court itself has made it clear that it thinks they are discrete inquiries?

Mr. Mitchell: Justice Ginsburg, we would respectfully submit that... that the State's recitation of Goodin is not a faithful representation of what happened in Goodin.

In Goodin, he was... the defendant was given the lesser-included simple murder instruction, which Howell seeks.

It was a robbery case.

The report of the case appears at 787 So.2d, beginning, I believe it's, 639.

At pages 655 and 656, the court addresses the Beck issue, and it says there that because the jury's alternative in the guilt phase was either to convict of capital murder or simple murder or to acquit, then and in that circumstance, the Beck... that Beck was not violated.

It then says we must look to our practice to determine whether a manslaughter instruction should be given.

And it is for that reason that we respectfully submit that Goodin does not attempt to distinguish Beck, but in fact squarely addresses a Beck claim, although... and we candidly admit... Goodin's counsel did cite Beck itself to the Mississippi court.

Nevertheless, the claim was phrased in precisely the same manner in which Mr. Howell's counsel expressed the same claim.

These claims, therefore, we would respectfully contend, are not virtually identical but are in fact identical.

But even if there were some minor variations, some deviations, as this Court indicated would appear from time to time, we contend that clearly that such identity, such virtual identity is sufficient to raise the issue.

In this case, Howell's trial and appellate counsel raised two issues with regard to the jury instructions.

Those two issues themselves were interrelated.

Those two issues were a whole.

Those issues related to whether or not there was sufficient evidence to convict of robbery and whether or not... or attempted robbery rather, and whether or not there was a basis to give a lesser-included instruction.

The cases which he cites are State cases related to the necessity of giving lesser-included instructions where there's an attempted robbery and simple murder is, therefore, included in that offense.

He also, at the outset of his contentions with regard to jury instructions, says that under the Eighth and Fourteenth Amendments, these jury instructions... and we contend that they must be considered as a whole.

These jury instructions violate his rights under the Eighth and Fourteenth Amendments.

It is our position that this is sufficient... while not a cognate of that, is sufficient to at least be a corresponding claim, a substantially identical claim to Beck, and one which entitles the defendant as a matter of due process and as a matter of Eighth Amendment consideration and concern, to an instruction.

The difficulty that we face in a circumstance such as this where the instruction is not given is that the jury's function, while not always reviewable, but which is always entitled to protection, may be called into question and the quality of the verdict impeached, in effect, by the failure to have the third option.

In essence, it is our contention that where a defendant uses the very words that this Court has used to describe the constitutional claim, where it uses the very words that the State supreme court has used--

Justice Stevens: May I ask you this question, Mr. Mitchell?

Supposing the... there are alternative lesser-included offenses that might be urged by the defendant as to... to get an instruction on, and he asks for the wrong one.

In other words, the question... there is a question here about exactly what is the lesser-included offense.

It seems to me that if he tried to kill... if he killed the driver of the vehicle, there may well have been some kind of crime.

But maybe you ask for a lesser-included offense of, say, simple murder and the facts don't fit simple murder, but they might fit manslaughter or something else.

Would your request for... for a simple murder, lesser-included offense instruction be sufficient if you should really have asked for a different lesser-included offense instruction?

Mr. Mitchell: --We would respectfully submit that... that even the Mississippi court has addressed that situation in... in a case cited in... in the briefs in Mease.

And there, the defendant asked five times for instructions, lesser-included offense instructions, and never actually got them right.

The court said that that is not a basis upon which to deny the instruction and then, citing back, said that where there is a proper lesser-included offense, the fact that the... that the defendant does not request the proper instruction still rises to the constitutional proportions that a Beck claim does.

Justice Souter: Is... is that the case here too?

One of the things that's neither here nor there I guess, but one of the things that perplexed me was that I would have thought that the lesser-included offense on... on the theory that the... that he didn't intend to kill, he was sprayed with mace, got mad, pulled out a gun, and shot and so on... I would have thought the lesser-included offense was a heat of passion kind of killing.

But as... as I read the... the statement of... of simple murder, which requires a deliberate act, that didn't sound like it.

And I... I read negligent homicide, and that didn't sound like heat of passion.

But is... is it your point here, if... if we get into it, that as long as you asked for some lesser-includeds, under Mississippi law that raises the issue adequately?

Mr. Mitchell: We... we believe that it does raise it adequately.

We believe that it--

Justice Ginsburg: But then what would be a lesser-included offense?

Because if it's not simple murder and it's not manslaughter, you haven't suggested a third that it might be.

I thought your whole position was that this simple murder was right and the--

Mr. Mitchell: --We do contend that it was right, Your Honor.

Justice Ginsburg: --and the judge was obliged to give it.

So why... in view of what Justice Souter just said about simple murder requiring a deliberate design, where was the deliberate design here?

Mr. Mitchell: We believe that... that there are, in effect, two forms of simple murder because of the structure of... and in fact, the Mississippi Supreme Court has said this... because of the structure of the Mississippi murder definitions.

They are contained in a number of separate sections, but the most important of which is that a killing, not done in certain enumerated felonies, such as robbery or attempt to rob, would constitute simple murder.

We believe that the simple murder instruction would have been correct.

But even if it were not, we would respectfully submit that that is sufficient to raise the question.

Justice Ginsburg: But what would be if it were not?

What would be the lesser-included offense?

Mr. Mitchell: Arguably it would be manslaughter.

For example, the Mease case, which the State cites and to which I made reference, was a case in which capital murder was not robbery murder as in this case, but the killing of a police officer.

In Mease, there was an altercation between the sheriff and Mease.

During that altercation, Mease was struck on the head by another deputy.

His contention was that the gun fired, which he was holding next to the sheriff's neck.

The gun fired by reaction for two reasons, one that he was in a fight and, secondly, that he was struck.

The Mease court said that that was a proper basis to instruct on manslaughter, the fact that he had pulled the gun and was using it during the course of the fight.

Now, while I find that case difficult to parse, we believe that that certainly could have been an argument that could have been raised and that, albeit it was not, it could have been a proper instruction to have been given.

If there are no further questions, I'd like to reserve the remainder of my time.

Justice Stevens: You may.

General Hood.

Argument of James M. Hood, III

Mr. Hood: Justice Stevens, may it please the Court:

I'd like to make the point, as far as jurisdiction goes, that... that the defendant has failed to make a Federal claim and he is required under Webb v. Webb.

If the Mississippi Supreme Court... if the lower court does not address the issue, then it is assumed that it was not properly raised.

Now, as to the issue of Beck, there is no Beck violation.

Actually Mississippi finally... we've gotten in one instance, we've... we've become first in... in this regard.

In Jackson v. State in 1976, our Supreme Court... which was cited in a footnote 10, I believe, in... in Beck.

In the Jackson case, Mississippi said... we had the same statute, pretty much, that Alabama had that restricted a lesser-included offense instruction.

Mississippi said, number one, you cannot restrict that lesser-included offense instruction if it is supported by the facts, and number two, in the Jackson case, the court held that there had to be bifurcation, which was the problem, the impact on the guilt phase.

And... and so I would submit to the Court that there is no impact in Mississippi in this case on the guilt phase, nothing to influence the jurors' decision, and that was the inherent problem that the Court recognized in Beck.

Number two, Mississippi allows a life sentence, which also distinguishes Beck.

It... it allows the jury, in a separate, bifurcated hearing, to determine whether or not the defendant should receive life or the death penalty.

And then thirdly, in Mississippi, we have a broader standard than the Federal standard.

If it's any lesser offense in Mississippi, then the defendant is entitled to it if it's supported by the facts of the case.

So we have a broader standard that gives the defendant an easier opportunity to meet that standard.

And thirdly--

Justice Scalia: I don't get your point.

It doesn't have to be a... a lesser-included offense--

Mr. Hood: --Yes, yes, sir--

Justice Scalia: --so long as it's a lesser offense?

Mr. Hood: --Justice Scalia.

It just has to be a lesser offense.

And I would submit to the Court that if we are analyzing a Federal constitutional issue, then perhaps we... we should follow Federal constitutional standards, which was stated... the strict elements test, in other words, because under... under Federal law, it has to be, well, number one, a lesser-included offense, a true lesser-included offense, and under the Schmoke case, this Court has stated that that is in fact applying the strict elements--

Justice Stevens: May I interrupt with a question there, General Cox?

Mr. Hood: --Yes, sir.

Justice Stevens: In this case, if the man approached the victim in the car and shot him and killed him, as I understand it, and the theory was an attempted robbery and therefore the... the capital offense.

Now, are you telling me that if they failed to prove there was an attempted robbery, it was not an offense at all?

Mr. Hood: No, sir.

I... I'm not stating that.

It would... it would be an offense, but based upon these facts.

Justice Stevens: But why wasn't he entitled to an instruction on whatever offense it was?

Mr. Hood: Because the... the facts in this case show that there was no other reason for him to approach that vehicle than to rob that individual.

There was no premeditated intent.

Justice Stevens: But his theory was if there was a failure of proof on the attempted robbery, that all was left was a... a killing for some other reason.

And if there was a killing... if there was a failure of proof on attempted robbery, would he not then have been entitled to a... a lesser offense instruction?

Mr. Hood: Yes, sir, Justice Stevens.

Justice Stevens: So what your theory is then--

Mr. Hood: It depends on--

Justice Stevens: --if I understand it correctly, is the proof that there was an attempted robbery is so convincing that no other theory was available.

Mr. Hood: --Well, that's the facts that we had in this case.

And your analysis there again will... will hinge on whether or not... in Mississippi admittedly murder would be a lesser-included offense if the facts support it and also manslaughter.

But now, if you apply the Federal standard--

Justice Kennedy: But I still don't understand your answer to Justice Stevens' question.

I had the... I had the same problem.

The evidence of robbery here was circumstantial, strong, but still circumstantial based on his earlier statements that he was going to make a sting, I think he said, and then the witness saw him outside the window and... and he stopped the car.

And I take it, he didn't take the stand and say, I stopped the car to ask for directions or something.

But still it's... it's... that's certainly a jury issue as to whether there was a robbery.

Mr. Hood: --Yes, sir, it is.

It's... the... the facts were in this case, though, all night long they had ridden around looking for someone to rob.

They made a statement in Tupelo--

Justice Kennedy: But... but would the State of Mississippi take the position that if there was no robbery, there was no crime in this case--

Mr. Hood: --No, sir.

Justice Kennedy: --when a man is shot and killed?

Mr. Hood: On the facts that we had, if... if you analyze it under the Federal standard... and I would submit to the Court that we should apply--

Justice Kennedy: No.

I'm talking about just Mississippi law.

You're the prosecutor saying, we... we may not get robbery here.

The... is that the only thing they charge is robbery or let the man go after he shoots and kills the person he doesn't even know?

Mr. Hood: --We don't know... he didn't know this defendant.

Justice Breyer: No, no, but the question is suppose we have a different case, not this case.

Everything is the same but for the fact we know for sure it wasn't a robbery.

That's all.

Now, in that different case, is it a crime under the law of Mississippi what happened?

Mr. Hood: Well, first--

Justice Breyer: I've told you everything about the case.

It's just like this one except we know it isn't a robbery.

Now, is it a crime?

The answer we think is absolutely it's a crime.

And my next question is which crime.

Mr. Hood: --Which crime.

Justice Breyer: Okay?

Mr. Hood: Yes, sir.

You're correct.

First, we wouldn't have... have charged--

Justice Breyer: So which crime is it?

Mr. Hood: --Based upon the facts that we had... and he didn't know this individual.

He had no premeditated intent to kill him.

Justice Breyer: Right.

Mr. Hood: It would not be murder.

Justice Breyer: No.

So it would be something.

What would it be?

Mr. Hood: It could arguably be a felony murder, which is a separate statute in Mississippi.

Justice Breyer: All right.

So then maybe there's a felony--

Mr. Hood: He meant to commit another--

Justice Breyer: --Is anything else possible?

Mr. Hood: --another crime.

Justice Breyer: Manslaughter?

Mr. Hood: Well--

Justice Breyer: I mean, it's odd that in Mississippi people just go around shooting each other all the time and there's no statute that seems to cover it.

[Laughter]

Justice Kennedy: And if you don't know someone, then it's not murder?

[Laughter]

I don't understand.

Mr. Hood: --Oh, yes, sir.

That... that happens all the time.

Justice Breyer: All right.

So there must be--

Mr. Hood: But, of course, it's premeditation.

If there were evidence, say, for example--

Justice Breyer: --No, no, no.

They just do it... who knows why.

All we know about them is they went and killed somebody.

Now, I think it's still a crime to kill people in, I thought, all 50 States, but... but--

[Laughter]

So I'm going to say which--

Justice Ginsburg: Let's make it... if we make it concrete, let's take all that we have in this case is the testimony that Rice gave.

Rice was the one who observed this murder, and he didn't have any statements about the defendant needing money to pay off his debt.

You have only that snapshot scene of what the witness saw from the window, which doesn't establish any robbery at all because Rice said he didn't observe any robbery going on.

All he observed was the killing.

Now, if that's all you have in this case, a person was killed, an eyewitness to the shooting, the eyewitness testifies exactly as Mr. Rice did in this case, what crime would you indict for?

Mr. Hood: --Justice Ginsburg, to... to... first of all, we wouldn't have indicted for capital murder if we didn't have that evidence.

We wouldn't be discussing the Beck issue.

It wouldn't be a lesser-included offense question.

We'd strictly be focusing on those facts, number one, that particular witness Rice was on the other side of the vehicle.

You had separate testimony from Lipsey, the co-defendant who was in the vehicle and could... behind where... where--

Justice Ginsburg: Yes, but I'm giving you a hypothetical where--

Justice Stevens: General Scott, I suggest you try to answer her question.

Justice Ginsburg: --Yes.

All you have--

Justice Stevens: The question is that's... one witness is all you had.

Would there be a crime against the law of Mississippi and if so, what would it be?

Mr. Hood: --It would be manslaughter, I suppose, Your Honor.

That's not the facts in this case and... and I apologize--

Justice Breyer: --Okay.

So what... but... but the line of reasoning is... is... now, there is a crime. Let's call it X.

All right?

And what you're... what counsel says is it's the law of Mississippi that if there is a crime and it's X and it's lesser, you've got to charge it if somebody just says, please give me a lesser-included instruction, even if he's all mixed up as to what the right crime is.

I don't know if that's the law of Mississippi.

From reading the Mississippi Supreme Court opinion, I would say it wasn't the law of Mississippi because they say you're not supposed to charge people in ways that would mix them up.

But, I mean, anyway... but that's the argument.

So what's the response?

Mr. Hood: --There--

Justice Breyer: And don't take the one I just suggested because I'm not sure that's right.

What is your response?

Mr. Hood: --There are 12 separate manslaughter sections in the Mississippi code, not in one section.

Our murder section lists... lists four just in one section.

There are 12 different ones.

We have one if you drive a nail in a tree and... and you're... you're cutting lumber and it kills someone, that's a manslaughter still.

This defendant only requests a culpable manslaughter instruction.

There was no evidence to... to support that.

The only potentially... I... I could even make a stretch... would be heat of passion.

He did not request that... request the instruction, and--

Justice Souter: Well, is that fatal to him?

I mean, that's what we're... one of the things we're trying to get at I guess.

Is... is that fatal to him?

Mr. Hood: --His failure to request--

Justice Souter: Under Mississippi law, would he be entitled to a lesser offense instruction if he asked for the wrong lesser offense?

I.e., in this case, if he failed to ask for heat of passion, would he still be entitled to a correct lesser instruction, even when he didn't ask for it?

Mr. Hood: --Perhaps the judge should correct within a particular statute, but not go look at all 12 statutes that he's under... which... which would classify as murder.

Justice Souter: So you say he's not entitled then.

Mr. Hood: Yes, sir.

Justice Souter: The... the only thing he would be entitled to, if he were correct, is the lesser instruction that he asked for, and if he's not correct, there's no error.

Mr. Hood: Yes, sir.

He would have had to... to have specifically requested heat of passion.

But there again, I don't believe that he put on evidence to support even--

Justice Souter: No.

We're just trying to get at what Mississippi law is, and I think you've--

Justice Stevens: And under your view of the facts, as I understand it, he would have been entitled to a manslaughter instruction.

Mr. Hood: --I don't... that's only a stretch to answer... answer Justice Breyer's question.

Justice Stevens: Well, surely... surely, if one walks up to a car and shoots the driver dead, that's must be a crime.

Mr. Hood: Yes, sir.

It... it would have to be classified as--

Justice Stevens: And the question is we don't know exactly which of your several statutory provisions it violated, but if it violated one of them, I don't understand.

And if he's correct... maybe he misrepresents the law.

He tells us, as a matter of State law, if he asked for the wrong lesser-included instruction, but there is a correct one, the judge has a duty to give the correct instruction.

That's what... what the counsel has told us.

And if that's right, I don't understand why he wasn't entitled to some lesser-included offense instruction.

Mr. Hood: --I... I believe what he was addressing was language within a particular statute, meaning a lesser-included offense of... of murder or how you styled it, whether it be depraved heart murder or... or felony murder, first degree murder.

Justice Stevens: So it's... it's your view he must ask for the correct lesser-included offense instruction.

Mr. Hood: Yes, sir.

And... and there again, I'd like for the Court to... to understand my statement that we should construe this on what... how the Federal law... how you... how the Federal courts construe it, not use Mississippi's lesser standard, but let's... let's construe it on whether or not, first, it is a true lesser-included offense because that's... that's what the Federal standard is, and that's what we followed in Nebraska.

And secondly, if it's a true lesser-included offense, we have to use the analysis of the Federal courts which says that it has to use the strict elements test.

Well, murder would not be a lesser-included offense under Federal law because under the Mississippi capital murder statute can be with or without deliberate design.

Therefore, there is no deliberate design.

It would not be a lesser-included offense of murder.

Manslaughter would not be a lesser-included offense under that same elements test because it requires the additional element of sudden provocation or heat of passion.

So I would submit to the Court, if we apply what's fair under Federal law, what the floor is under Federal law, we should use the Federal analysis and not Mississippi--

Justice Stevens: But is sudden provocation or heat of passion part of the prosecution's burden or a part of his... one of the... is it a matter of defense?

Mr. Hood: --It would be a matter of the defense raising sudden provocation.

And I don't believe that they... they certainly didn't put on anything about culpable negligence.

For example, maybe he was spinning the gun in his hand for culpable negligence.

They didn't put on anything about deliberate design because he didn't want to testify.

His defense was alibi and so he didn't take the stand and say, I intended to kill this person, therefore, give me the murder instruction.

He's got to put on evidence to support it, and I don't believe he put on sufficient evidence for either of those.

And... and I was the district attorney who tried this case, so factually I... I remember the... the... my argument was that we couldn't have proved murder if we had wanted to because there was no premeditation.

Justice Souter: --May I go back to the heat of passion point?

You say he did not put on evidence, but wasn't there evidence in the record through a State's witness that at least would have supported a heat of passion argument, the evidence being that he went up to the car, no gun was apparent, something happened.

Evidence shows that he was sprayed with mace, and at that point, he pulls out a gun and shoots.

That, I suppose, is evidence of heat of passion.

Couldn't he have asked for a heat of passion instruction even though he did not put on the heat of passion evidence himself?

Mr. Hood: He could have asked for a heat of passion instruction, but--

Justice Souter: Okay, but he did not do so.

Mr. Hood: --but he did not do so.

Yes, sir.

That... those facts--

Justice Scalia: Wait.

You're... you're... I don't... you're calling the heat of passion an element of... of the crime of manslaughter?

It's not an element of the crime.

Mr. Hood: --It's sudden provocation, yes, sir.

Justice Scalia: Suppose you walk up and... and you blow somebody away.

You can't... there's no heat of passion.

There's no sudden provocation.

You just walk up and blow them away.

And you're telling me that that's not a crime because you can't... you can't prove heat of passion?

You can't prove one of the other elements of manslaughter?

That can't be right.

Mr. Hood: No, sir.

The--

Justice Scalia: Why isn't it enough that you killed somebody?

Mr. Hood: --If... if--

Justice Scalia: You killed somebody.

You didn't plan to kill to somebody, so it's not murder.

Okay.

But you killed somebody.

Surely, there must be some crime in... in Mississippi that... that covers that.

Mr. Hood: --Yes, sir.

You--

Justice Scalia: What is it?

Mr. Hood: --charge murder and... and the prosecution--

Justice Scalia: No.

It's not murder.

It wasn't... you know, he didn't... I didn't walk up to the... to the car intending to kill him.

As you say, you couldn't have indicted for murder.

Mr. Hood: --Likely, the State would... would have... have... if those were the facts and that's all the facts that we had, then the State would likely have charged murder and asked for a lesser-included offense instruction for manslaughter.

Justice Souter: Manslaughter being defined as killing without deliberation?

Mr. Hood: Yes, sir.

Justice Souter: Okay.

That's what he--

Justice Scalia: There... there is a... you say there... there are what?

Nine different manslaughter, did you say?

Mr. Hood: Twelve different manslaughter--

Justice Scalia: Twelve different, and one of them is simply killing somebody simpliciter, without any provocation.

Right?

Mr. Hood: --Yes, sir, without.

But he requested the culpable negligent manslaughter instruction, and there was no evidence of culpable negligent manslaughter.

It's a separate section in our code now.

There are 12 different sections.

It's not like we have one statute that lists all of those.

And... and some of them are... are arcane.

And I think it's unfair to ask a trial court judge to correct every request for an instruction and... and... he... at trial, if you read--

Justice Kennedy: Well, let... let me ask... ask you this.

Knowing what we know now, we have the record, we have the benefit of hindsight, we know the evidence, in your view now what would have been the closest lesser-included offense for which an instruction might have been sought?

Mr. Hood: --There are two possibilities that were not requested.

One is our felony... felony murder.

Felony murder is... is the killing of... that occurs without occurring with one of the seven offenses that we have listed, murder, rape, and so forth, committing another crime.

Or heat of passion manslaughter.

And I would submit to the Court that... that they never requested anything about the felony murder and they never requested the heat of passion manslaughter.

Justice Stevens: May I ask this question just to help me sort of... what are the... as a matter of State law, what are the elements of the offense for which he was convicted?

Mr. Hood: Elements of the offense are that he... that he... a killing occurred with or without intent and that it was in the commission of... of a crime, robbery.

Justice Stevens: Those are the two elements.

And so that if you take out with... in the commission of another crime and just left the... the other part of it, would that also be an offense?

Mr. Hood: With or without under Mississippi law--

Justice Stevens: In other words, you say... you say the offenses are killing somebody with or without the intent to do so--

Mr. Hood: --Yes, sir.

Justice Stevens: --and in the course of an attempted felony.

Say you failed to prove the attempted felony and you proved the remainder of the... the other elements.

Is he guilty of anything in... under Mississippi--

Mr. Hood: It... if you... if you prove the intent--

Justice Stevens: --And if he is, why isn't it a lesser-included offense is my next question.

Mr. Hood: --Yes, sir.

If you just take those away and you just have those two elements, with or without, if it's with intent, then it would be classified as murder.

If it's without, it could possibly be... without intent, then it could be classified as manslaughter.

Justice Stevens: It seems to me that then there are two lesser-included offenses, and either one would have... he should have gotten an instruction on both.

Mr. Hood: I... I--

Justice Stevens: And I don't understand why not.

Mr. Hood: --Yes, sir, I understand.

But there again, if we go back to what the Federal standards are, we're talking about what the United States Constitution requires, and therefore, I would submit to the Court that we should apply what the Federal law is.

And that law is... number one, is it a lesser-included offense?

Using the elements test, murder is not a lesser-included offense to capital murder, and the reason being is because capital murder is with or without intent and you add an additional element of murder which requires intent.

Same goes for manslaughter because you had the additional sudden provocation element.

So I would say that if we follow the Federal standard and... and that's... that's the floor, and the floor is it's got to be a lesser-included offense, it... it's not a... a lesser-included offense.

So therefore that should answer the question.

Secondly, under the Federal standard, you have to prove that... that the court... the judge has to decide that the... a reasonable juror would acquit of the greater offense and also convict of the lesser.

Well, Mississippi law does not require that, but I... I'd submit to the Court that... that after the Beck decision in 1980, our supreme court in the case of In re Jordan... they applied the Federal standard.

They required that... when they analyzed Beck, they applied the Federal standard, in other words, the... the part about that you have to acquit.

You have to acquit on... on the greater offense.

And they also included the lesser-included offense language in that Beck analysis.

So, therefore, had he properly raised the jurisdictional issue... there's nowhere in the record does he cite Beck.

There's nowhere in the record that he states facts that would even support Beck.

So had he even properly reached that issue and... and cited Beck, I would submit to the Court that the facts don't support it under Mississippi law.

The facts don't support it under Federal law.

And it doesn't meet the lesser-included offense standard.

Justice Souter: --May... may I ask you?

I'm unclear on... on lesser-included in Mississippi.

And I'm going to take this step by step.

Mr. Hood: Yes, sir.

Justice Souter: And tell me if I'm right or wrong at each step.

The offense that he was charged with... the capital offense that he was charged with was killing with or without intent in the course of committing a crime.

Is that correct?

Mr. Hood: Yes, sir.

Justice Souter: All right.

Now, his claim... let's assume he claimed this.

There is evidence from... from which you... you could infer that he wasn't committing a crime.

He may or may not be right, but let's assume that's his claim, and let's assume the judge says, yes, there's some evidence that would indicate that he wasn't up there robbing at the time he stood next to the car.

Assume the judge accepts that.

He then says, on that assumption, I want a lesser-included offense instruction of simple murder, killing with intent.

Is that a lesser-included offense under... under capital murder?

Mr. Hood: There again, Your Honor--

Justice Souter: Because what he's saying is, I'm asking for an instruction on an offense which is lesser... it does not... it's an offense that doesn't include the course of the crime, but it does include the other elements.

It includes killing with intent.

Isn't that lesser-included on your definition of Mississippi homicide law?

Mr. Hood: --No, sir.

And... and I would say that under the Federal standard, clearly it's not a lesser-included offense.

I would say under the State--

Justice Souter: Yes.

I mean, he's got to qualify under the Federal standard.

He says, the offense I was charged with was killing with or without intent, plus crime.

I want an instruction that says nothing about plus crime but simply charges on killing with or without intent.

Isn't he asking under Federal law for a lesser-included instruction?

Mr. Hood: --No, sir.

He didn't... first of all, he never--

Justice Souter: All right.

Confine it to killing with intent.

Mr. Hood: --Yes, sir.

Justice Souter: Under... under... as I understood... as I understood you to define the capital offense, the State could prove the capital offense by saying he did have intent when he killed and he also happened to be committing a crime.

Am I wrong about that statement of Mississippi law?

Mr. Hood: I'm sorry, Your Honor.

I apologize.

I... I didn't follow you.

Justice Souter: I thought you said that on the capital offense, the killing could be with or without intent.

Mr. Hood: Right.

Justice Souter: I... I--

Justice Scalia: I think you confuse us by saying that.

If you just left that out of your statement, felony murder is killing in the course of a crime.

Don't say anything about intent.

Intent is not an element of felony murder.

Right?

Mr. Hood: Yes, sir.

Justice Scalia: So if you want to get plain murder, you're adding an element.

Mr. Hood: Right.

Justice Scalia: It has to be murder with intent, and that's why you say it's not a lesser-included offense because for plain murder, you need intent, and for felony murder, you don't need intent.

Mr. Hood: Thank you, sir.

Justice Scalia: Isn't that... isn't that your case?

Mr. Hood: Yes, sir.

Justice Souter: --So that the Mississippi law for felony murder is killing, pure and simple, plus crime, and simple murder is killing plus intent.

And that plus intent is why it is not lesser-included.

Mr. Hood: Yes, sir, on a felony--

Justice Souter: Okay.

I understand you now.

Let... let me ask you this as a matter of... on... on the second point, as a matter of Mississippi law.

Under the charge of capital murder, was there a possibility of sentencing to life or life without parole, as well as the possibility of the death penalty upon conviction?

Mr. Hood: --Yes, sir, and that's why I would submit to the Court it distinguishes--

Justice Souter: Okay.

So that's the second reason why it would not fall within the... the Beck rule.

Mr. Hood: --Yes, sir.

Justice Souter: Okay.

Mr. Hood: I'd like to also point out factually that in the... in the... initially in the petition, the... and actually at trial and at the Mississippi Supreme Court, they talked about that the defendant may have been able... may have been out there selling drugs to the defendant.

I'd submit to the Court that a proper view of the record, if you look at the Mississippi Supreme Court opinion at page 98 and... 97 and 98 and page 40, the defendant in his own brief admits that that was not in evidence.

It came from the... from a plea where the... where one of the co-defendants pled, and it never was placed before the jury.

Here in... in the brief in this particular case, they talk about, well, he... maybe he was borrowing money, the sting question, whether he was borrowing money.

That comment came from one of the witnesses named Powell who was merely speculating.

I don't know what he was talking about a sting, but it could have been that he was going to borrow money or... or rob somebody.

So that... that was speculation.

So the... the facts just don't support the granting of a lesser-included offense in this particular case.

I'd also like to ask the Court to... to note that in Hopkins v. Reeves in footnote 7, the... the Court suggests that we don't decide that... that particular case based upon the bifurcation issue alone.

I would ask that the Court answer that question in this particular case and state that Beck has no application in this particular case because the danger that occurred and the Court was concerned with in Beck is not... doesn't happen here in the Mississippi instance because in Jackson v. State, we had already said that you have a bifurcated hearing--

Justice Stevens: Well, but... but it is true that... that there's a difference between becoming eligible for the death penalty, on the one hand, and not being eligible on the other.

And conceivably the Beck concern is triggered when the failure to give a lesser-included offense gives the jury the option of... no other option other than convicting of a capital offense.

Mr. Hood: --Justice Stevens, I... I would respectfully disagree.

We believe that the... the Beck issue is just with this question.

You have a choice of guilt and death penalty or acquittal.

This question that they're raising is conviction, not death penalty, or acquittal.

And those are separate issues.

Justice Stevens: --an offense for which the death penalty is the punishment.

Mr. Hood: Yes, sir, but it doesn't impact the guilt phase, and that was what the problem was, I believe, in Beck, was that... that a jury might not... they don't want to turn him loose because... and they give him a conviction, which automatically carries the death penalty.

And that impacts the jury.

And I understand that.

That was a proper decision, but that just didn't happen here in this particular case.

And Mississippi has just distinguished Beck.

I don't believe that they properly raise this Court's jurisdiction.

They never cite Beck.

They never raised... they never said due process.

Justice Stevens: No, but if the jurors' concern is that you either have to acquit them or... we want to make sure he never walks out of prison again, and the only way to do that is to convict him of a capital offense so the judge can impose the death penalty.

I don't know why that Beck wouldn't be triggered on those facts.

Mr. Hood: Well, maybe I don't understand the question correctly.

But in Beck, you know, the jury wasn't told that the judge would have a separate option of denying the death penalty.

In this case, judge in State's... court instruction C-5, the court says you are not to consider the sentence, that you only consider the issue of guilt or innocence of the charge.

And so that's why I say this is not a Beck issue because it doesn't impact the... the jury's determination in the guilt phase.

Justice Kennedy: Well, it seems to me that works against you because it takes away from the jury the option of saying, well, we'll convict him of a serious offense, but we'll be sure not to give him a capital offense.

So that... it seems to me that that argument then works against you.

Mr. Hood: Well, Justice Kennedy, in Mississippi, we have, there again, that open standard, not the Federal standard.

And we would give him that instruction and give that jury that option if the facts support it, and I respectfully submit to the Court that... that the facts do not support a lesser-included offense under these facts.

If the Court has no further questions, thank you.

Justice Stevens: Thank you, General Hood.

Mr. Mitchell, you have about 4 and a half minutes left.

Rebuttal of Ronnie M. Mitchell

Mr. Mitchell: Justice Stevens, and... and may it please the Court:

With regard to the argument that the State makes here that these individuals had ridden around all night with a plan to rob and that, therefore, there were no other... there was no other possibility for the court to consider in... in granting instructions, first, it is our contention that both Mississippi law and due process law requires a judge to instruct a jury on all of the relevant issues in the case, on all the relevant law in the case.

And in Fairchild v. State, that is precisely what the Mississippi court did in saying that a court could not simply conclude, no matter how strong the evidence of attempt to rob or plan to rob, that it could, in effect, direct a verdict and not instruct on lesser-included offenses.

Justice Kennedy: Well, your... were the two principal lesser-included offenses in... in your view your D-13 and D-18 that are in the appendix?

Mr. Mitchell: Your Honor, those are the ones that were... were, in fact, raised.

We believe that rather than intent the... on the simple murder, that the issue is malice as opposed to intent.

The statutory definition, for example, of manslaughter in... in Mississippi statute 97-3... I believe 27 is a killing of a human being without malice and while not in the commission of these felonies.

Now, it may be that simply a small-town lawyer from... from North Carolina is told don't go to the big city and get stung by some guy coming up to you and saying, you know, I just got off the bus and I need to get some money from you and my kids and my wife are waiting for me in the hotel room.

But that happens not only in the big city, it also happens in Mississippi.

And so there was a basis in which a jury could reasonably infer that there was a reason to approach that vehicle other than an attempted robbery.

And the question is, what is a reasonable inference?

The Mississippi court here in its opinion said that there was clearly evidence from which a jury could infer robbery.

We concede that, but there were also other inferences that this evidence raised, and that evidence, we respectfully submit, mandated a lesser-included offense instruction.

We also contend that... that the State has not, heretofore, raised any issue about Beck's continuing vitality, but we respectfully submit that Beck is of continuing vitality.

Just a... a survey of even habeas corpus cases from the various circuits will show that the circuits are continuing to apply Beck even in States where the statutory sentencing scheme is far different from Beck and there is no preclusive statute involved, as there was in Alabama.

We respectfully submit that the language in Beck itself speaks to this issue.

The Beck court added, the same reasoning must apply to rules that diminish the reliability of the... the guilt determination, the very point that Justice Kennedy pointed out undercuts Mississippi's argument.

It is this diminution of the reliability of the guilt determination that is at issue here.

In addition to that, we would respectfully submit that under these circumstances, there was a basis under which a lesser-included offense instruction was mandated because Beck did not apply the Blockburger test.

In fact, it did not incorporate Blockburger, did not refer to Mullaney v. Wilbur.

What it did was it said if there is a lesser-included offense, as defined by State law.

All of the succeeding cases from this Court have said if there is a lesser-included offense, as defined by State law, conceding that State law is the applicable standard then and not the standard that the State now seeks to impose, which it never raised in... in its brief, which it has never asserted to be the standard.

Blockburger is certainly not cited in anything that the State has submitted.

Blockburger is not contended to be the basis, nor could it be.

The basis is is there a lesser-included offense under State law, and we contend that that is the basis on which this case should be decided.

Thank you very much.

Justice Stevens: Thank you, Mr. Mitchell.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.