WHITE v. DUGGER
483 U.S. 1045 (1987)

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U.S. Supreme Court

WHITE v. DUGGER , 483 U.S. 1045 (1987)

483 U.S. 1045

Beauford WHITE
v.
Richard L. DUGGER, Secretary, Florida Department of Corrections.
No. 87-5362 (A-172)

Supreme Court of the United States

August 27, 1987

On petition for writ of certiorari to the United States Court of Appeal for the Eleventh Circuit.

The application for stay of execution of the sentence of death presented to Justice SCALIA and by him referred to the Court is denied. The petition for writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

The State of Florida will execute Beauford White tomorrow morning without so much as a determination by its own courts that his death sentence is currently legal. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 227, 2971 (1976) (dissenting opinion). But even were I not of that view, [ White v. Dugger 483 U.S. 1045 (1987) ][1045-Continued.]

I would dissent from this Court's tacit approval of a death sentence whose factual predicate the executing State has not reviewed for consistency with intervening Supreme Court precedent. I would vote to stay White's execution, grant his petition for writ of certiorari, and reverse the judgments below denying habeas relief.

I

As summarized by the Florida Supreme Court, the relevant facts of this case are as follows: White and two companions entered a home under a subterfuge to rob its occupants. All three were armed and wore masks covering their faces from the nose down. After blindfolding and binding the sole occupant, the three robbers ransacked the house in search of valuables. Within an hour, seven acquaintances of the occupant appeared at the house. The three robbers bound the newcomers. At some point, the mask of one of White's companions fell off, exposing his face to the victims. Consequently, the three discussed the need to kill the victims. White voiced his opposition, but to no avail; his companions overrode him . White's two companions separated the victims into two rooms and systematically shot all eight in the back of the head, killing six. White remained in the house throughout, but did not participate in the shootings . The three co-felons then returned to White's motel room to divide their loot. A fourth participant, a wheelman who never entered the home, testified that he and White were both

Page 483 U.S. 1045 , 1046

duped into what he later discovered was a planned contract murder of one or two of the victims. He also testified that White was visibly shaken afterwards and refused to help dispose of the weapons.

A Florida jury convicted White of six counts of first-degree murder, two counts of attempted first-degree murder, and four counts of robbery, and unanimously recommended a life sentence. The trial judge, disregarding the jury's unanimous recommendation, imposed a death sentence . After this Court's decision in Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368 (1982), the Florida courts entertained a petition for postconviction relief to determine whether White's conduct exhibited the requisite intent to sustain a death sentence under that intervening case. The Florida Supreme Court reversed a lower court finding that Enmund was not satisfied. The court held that White had the requisite intent (within the meaning of Enmund) because, "whatever [White] might have originally intended or contemplated about lethal force being used in the robbery, it can hardly be said that he did not realize that lethal force was going to be used in carrying out the robbery." State v. White, 470 So.2d 1377, 1380 (Fla.1985).

Since then, White has twice sought post-conviction relief from the Florida courts. He has argued, among other things, that he is entitled to a new determination as to whether his conduct was sufficiently culpable to satisfy the new culpability standard that this Court articulated in Tison v. Arizona, 481 U.S. 137 (1987). On each occasion, the state courts barred his application as untimely. White then filed a habeas petition in the United States District Court for the Southern District of Florida. The District Court denied relief, and the Court of Appeals for the Eleventh Circuit affirmed, 828 F.2d 10 (1987). This evening, less than 11 hours before his death, White filed the instant petition for a writ of certiorari and application for a stay of execution.

II

While the Florida Supreme Court purported to have found White's conduct sufficiently culpable to satisfy the Enmund test, it has to date never reconsidered that determination in light of this Court's rereading of Enmund in Tison. After briefly summarizing how Tison modified the Enmund inquiry, I will explain why, in my view, the modified analysis demands that we vacate White's death sentence, just as we did in Tison, until such time as the Florida courts have established the factual predicate that a majority of this [483 U.S. 1045 , 1047]


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