ON MOTION TO REINSTATE DEATH SENTENCE AND MOTION TO SET A NEW EXECUTION DATE
PART I: ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT,
HOLDING (1) THAT THIS COURT MAY PROCEED TO MAKE A DETERMINATION OF WHETHER OR NOT THE RECORD IN THIS CASE, AS MADE, CONTAINS AT LEAST ONE OF THE ENMUND
REQUISITES AND (2) THAT AT LEAST ONE OF THE ENMUND REQUISITES IS REFLECTED BY THE RECORD.
PART II: ANDERSON, J., FOR THE COURT, DETERMINING THAT
BULLOCK BE SENTENCED TO IMPRISONMENT FOR LIFE.
Crawford Bullock, Jr. is now before this Court on a motion of the State of Mississippi to reinstate the death sentence and to set a new execution date, and upon Bullock's cross-motion to remand this cause to the lower court for a resentencing hearing before a jury, or, in the alternative, to order the imposition of a sentence of life imprisonment here. (Appellant's Brief - pp. 12-31).
Crawford Bullock, Jr. was indicted at the November 1978 Term of the Circuit Court, First Judicial District, Hinds County, Mississippi, for the capital murder of Mark Dickson, while committing the crime of robbery against Dickson. An accomplice in the crime was Rickey Tucker, who actually administered massive blows to the victim's head, which resulted in his death. A bifurcated trial was held during the May 1979 Term of said court, and the jury returned a guilty verdict of capital murder at the conclusion of the first phase of the trial. A separate sentencing phase was held following the guilty verdict, and, after deliberation, the jury returned a verdict imposing the death sentence as punishment for the crime. Reviews of his conviction and sentence by this Court and the Federal courts are enumerated in the following sequence:
(1) The Mississippi Supreme Court affirmed the conviction and sentence August 6, 1980. Petition for rehearing was denied January 14, 1981. Bullock v. State, 391 So.2d 601 (Miss. 1980).
(2) Petition for writ of certiorari to the Supreme Court of Mississippi was filed in the United States Supreme Court seeking review of the decision of the state court and was denied by the United States Supreme Court. Bullock v. Mississippi, 452 U.S. 931, 101 S. Ct. 3068, 69 L.Ed.2d 432 (1981).
(3) Bullock filed an Application for Leave to File a Petition for Writ of Error Coram Nobis with the Mississippi Supreme Court, which application was denied without opinion on October 7, 1981.
(4) Bullock then sought relief by Petition for Writ of
Habeas Corpus in the United States District Court for the Southern District of Mississippi. Magistrate John Countiss, sitting as a district judge, held an evidentiary hearing on the issue of ineffective assistance of counsel and, after consideration of the issues raised by Bullock, relief was denied on the petition June 30, 1983. Bullock v. Lucas, Civil Action No. J81-0357 (N).
(5) The denial of habeas relief was appealed by Bullock to the United States Court of Appeals for the Fifth Circuit and, on September 21, 1984, that court affirmed the guilt phase of appellant's trial and reversed the sentence phase. The reversal was based on the Fifth Circuit's interpretation of the holding in Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L.Ed.2d 1140 (1982). Bullock v. Lucas, 743 F.2d 244 (5th Cir. 1984). The State of Mississippi filed petitions for panel rehearing and rehearing en banc, which were denied October 31, 1984.
(6) The State of Mississippi petitioned the United States Supreme Court to grant a petition for certiorari to the Fifth Circuit Court of Appeals, seeking reversal of the judgment of that court. The United States Supreme Court granted the State's petition for certiorari on April 22, 1985. Cabana v. Bullock, 471 U.S. 1052, 105 S. Ct. 2110, 85 L.Ed.2d 476 (1985). Arguments were heard on November 5, 1985, and, on January 22, 1986, the United States Supreme Court reversed the judgment of the Fifth Circuit Court of Appeals, but vacated the death sentence and remanded for a determination by the Mississippi Supreme Court, through state procedures, whether the Enmund requirements were met. Cabana v. Bullock, 474 U.S. ___, 106 S. Ct. 689, 88 L.Ed.2d 704 (1986).
(7) On April 21, 1986, the United States District Court for the Southern District of Mississippi remanded the case to this Court for further proceedings consistent with the holding of the United States Supreme Court in Cabana v. Bullock, supra.
MAY THE MISSISSIPPI SUPREME COURT DETERMINE FROM THE TRIAL RECORD AS MADE IN THIS CASE WHETHER OR NOT THE REQUISITES OF ENMUND V. FLORIDA, 458 U.S. 782, 102 S. Ct. 3368, 73 L.Ed.2d 1140 (1982), WERE MET, OR MUST THE CAUSE BE REMANDED TO THE LOWER COURT FOR A EVIDENTIARY HEARING BY THE TRIAL JUDGE OR JURY FOR SUCH DETERMINATION?
Enmund v. Florida, supra, was decided in 1982,
approximately two (2) years after Bullock was tried and sentenced to suffer the death penalty. In Enmund, the United States Supreme Court ruled that the Eighth Amendment forbids the imposition of the death penalty on" one . . . who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place, or that lethal force will be employed. "458 U.S. at 797, 102 S. Ct. at 3376, 73 L.Ed.2d at 1151. The question in this case before the U.S. Supreme Court, and for this Court on remand, is for a determination in whose hands the decision that a defendant possesses the requisite degree of culpability properly lies. If that decision properly lies within the function of this Court, on remand, then on the record before us, do we find from the record that the Enmund requisites were met, or that the cause must be remanded for an evidentiary hearing in the lower court?
We look for the answer to the first prong of the question to the decision of the United States Supreme Court in Cabana v. Bullock, supra. There, the Court said:
But our ruling in Enmund does not concern the guilt or innocence of the defendant - it establishes no new elements of the crime of murder that must be found by the jury. Rather, as the Fifth Circuit itself recognized, Enmund" does not affect the state's definition of any substantive offense, even a capital offense. "Reddix v. Thigpen, 728 F2d, at 709; see also Enmund, 458 US, at 810, n 19, 73 L Ed 2d 1140, 102 S Ct 3368 (O'Connor, J., dissenting). Enmund holds only that the principles of proportionality embodied in the Eighth Amendment bar imposition of the death penalty upon a class of persons who may nonetheless be guilty of the crime of capital murder as defined by state law: that is, the class of murderers who did not themselves kill, attempt to kill, or intend to kill.
The decision whether a particular punishment-even the death penalty - is appropriate in any given case is not one that we have ever required to be made by a jury. Indeed, in Spaziano v. Florida, 468 US ___, 82 L Ed 2d 340, 104 S Ct 3154 (1984), we specifically rejected the argument that the Sixth Amendment or any other constitutional provision provides a defendant with the right to have a jury consider the appropriateness of a capital sentence. Moreover, the decision whether a sentence is so disproportionate as to violate the
Eighth Amendment in any particular case, like other questions bearing on whether a criminal defendant's constitutional rights have been violated, has long been viewed as one that a trial judge or an appellate court is fully competent to make.
Indeed, Enmund does not impose [any] * particular form of procedure upon the States. The Eighth Amendment is satisfied so long as the death penalty is not imposed upon a person ineligible under Enmund for such punishment. If a person sentenced to death in fact killed, attempted to kill, or intended to kill, the Eighth Amendment itself is not violated by his or her execution regardless of who makes the determination of the requisite culpability; by the same token, if a person sentenced to death lacks the requisite culpability, the Eighth Amendment violation can be adequately remedied by any court that has the power to find the facts and vacate the sentence. At what precise point in its criminal process a State chooses to make the Enmund determination is of little concern from the standpoint of the Constitution. The State has considerable freedom to structure its capital sentencing system as it sees fit, for" [a]s the Court has several times made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. "Spaziano, supra, at ___, 82 L Ed 2d 340, 104 S Ct. 3054; . . . [Citations omitted].
. . . Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant's culpability has been made. . . .
. . . [I]t is Mississippi, therefore, not the federal habeas corpus court, which should first provide Bullock with that which he has not yet had and to which he is constitutionally entitled - a reliable determination as to whether he is subject to the death penalty as one who has killed, attempted to kill, or intended that a killing take
place or that lethal force be used.
The proceeding that the state courts must provide Bullock need not take the form of a new sentencing hearing before a jury. As indicated above, the Eighth Amendment does not require that a jury make the findings required by Enmund. Moreover, the sentence currently in force may stand provided only that the requisite findings are made in an adequate proceeding before some appropriate tribunal - be it an appellate court, a trial judge, or a jury. A new hearing devoted to the identification and weighing of aggravating and mitigating factors is thus, as far as we are concerned, unnecessary.
Accordingly, the District Court should be directed to issue the writ of habeas corpus vacating Bullock's death sentence but leaving to the State of Mississippi the choice of either imposing a sentence of life imprisonment or, within a reasonable time, obtaining a determination from its own courts of the factual question whether Bullock killed, attempted to kill, intended to kill, or intended that lethal force would be used. If it is determined that Bullock possessed the requisite culpability, the death sentence may be reimposed. The judgment of the Court of Appeals is modified to this extent, and the case is remanded to that court for further proceedings consistent with this opinion. (Original emphasis)
474 U.S. at ___, 106 S. Ct. at 696-697, 700, 88 L.Ed.2d at 715-717, 719-720.
Therefore, after careful consideration of Cabana v. Bullock, supra, this Court is of the opinion, and holds, that it may properly examine and consider the record before us made in the original trial of this case, and make a determination whether or not that record supports the finding of at least one of the Enmund requisites. In the event we make the determination in the affirmative, then our procedure will be to reimpose the death penalty and set an execution date for Bullock. If we are unable to determine that at least one of the Enmund requisites is reflected by the record, then, we must remand the case to the lower court for an evidentiary hearing to make that determination
DOES THE RECORD REFLECTING THE EVIDENCE IN THIS CASE MEET THE ENMUND TEST FOR IMPOSING THE DEATH PENALTY?
Being fully apprised of, and mindful of the strictures contained in Enmund v. Florida, supra, and Cabana v. Bullock, supra, we examine Kirkpatrick v. Blackburn, 777 F.2d 272 (5th Cir. 1985), where the Fifth Circuit said:
Neither Enmund nor our three decisions interpreting it make the use of the words" lethal force "talismanic. Enmund's teaching is that a person may not be sentenced to death for the death-dealing act of another unless he shares culpability for the homicide. The words" lethal force "as employed in Enmund make it clear, however, that the defendant will not be absolved if he contemplates" that lethal force will be employed by others. "While the death penalty may not" be imposed for vicarious felony murder. . . , "it may be imposed on one who knowingly participates in a course of action that contemplates the use of lethal force, even if one is not the ...