White v. Wainwright, 85-2979-CIV.

• Decision Date: 31 March 1986
• Docket Number: No. 85-2979-CIV.,85-2979-CIV.
• Citation: 632 F. Supp. 1140
• Parties: Beauford WHITE, Petitioner, v. Louie WAINWRIGHT, Respondent.
• Court: U.S. District Court — Southern District of Florida

632 F. Supp. 1140

Beauford WHITE, Petitioner, v. Louie WAINWRIGHT, Respondent.

No. 85-2979-CIV.

United States District Court, S.D. Florida.

March 31, 1986.

Thomas G. Murray, Asst. Public Defender, Eleventh Judicial Circuit of Florida, Miami, Fla., for petitioner.

Calvin Fox, Asst. Atty. Gen., Miami, Fla., for respondent.

MEMORANDUM OPINION AND ORDER

MARCUS, District Judge.

Petitioner Beauford White, a State prisoner currently on death row, has filed this habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging the imposition of the death sentence upon conviction of six counts of first degree murder.

At the core of this habeas corpus challenge is the contention that the imposition of the death sentence violates the flat command of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and the Eighth Amendment to the United States Constitution which 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." Id. at 797, 102 S.Ct. at 3376. Three additional arguments are urged upon this Court: that the reimposition of the death penalty by the Supreme Court of Florida after it was vacated by the trial court on collateral attack violates the double jeopardy clause within the meaning of Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); that Section 921.141(5)(h) of the Florida Statutes which establishes as an aggravating circumstance that a homicide was "especially heinous, atrocious or cruel" was both unconstitutionally vague and overbroad as applied to the facts of this case; and finally that both the trial court and the Supreme Court of Florida failed to give weight to the non-statutory mitigating circumstance that Petitioner was not a shooter.

On the facts of this case we find no constitutional infirmity in sentencing Beauford White to die and accordingly we DENY this petition for a writ of habeas corpus.

I.

A. The Trial

The procedural history of this case is straightforward and the facts are essentially uncontested. Only the inferences drawn from those facts are deeply in controversy. Petitioner Beauford White was charged in a twelve-count indictment with six counts of first degree murder, two counts of attempted first degree murder and four counts of robbery, along with Marvin Francois, John Errol Ferguson and Adolphus Archie. The Petitioner was tried alone upon his motion for severance and convicted on all twelve counts. Co-defendants Ferguson and Francois were tried separately, convicted of first degree murder and sentenced to die.¹ Adolphus Archie entered a plea of guilty and became a star witness for the State in connection with these prosecutions. The indictment itself charged Petitioner White along with the others with having unlawfully and feloniously, from a premeditated design to effect the death of a human being, or while engaged in the perpetration of, or in an attempt to perpetrate, robbery, with having killed six individuals by shooting them in the head with a deadly weapon, in violation of Florida Statute 782.04.

The trial judge, the Honorable Richard Fuller, instructed the jury about first degree murder on alternative theories of felony murder and premeditated murder. About vicarious murder the judge said:

A person may commit the crime of first degree murder by his own personal act or through another person. Any person who knowingly aids, abets, counsels, hires, or otherwise procures the commission of one of these enumerated felonies including robbery or the attempt thereof, resulting in the unlawful killing of the victim, and is physically present at commission of the enumerated felony or the attempt thereof, is "engaged in the perpetration of or the attempt to perpetrate" that enumerated felony and is equally guilty of the crime of first degree murder with the one who actually performs the criminal act.

(T.R. at 1363-64).

The court charged that for one person to be guilty of a crime physically committed by another it is necessary that he have a "conscious intent that the enumerated felony or the attempt thereof shall be committed," id., and that pursuant to that intent he do some act or say some word which was intended to and did incite, cause, encourage, assist or induce another person to actually commit the enumerated felony.

The trial court also charged the jury on the meaning of premeditated murder and said, among other things, that "a premeditated design" was a "fully formed conscious purpose to take human life formed upon reflection and present in the mind at the time of the killing. The law does not fix the exact period of time which must pass between the formation of the intent to kill and the carrying out of the intent." (T.R. 1367-68). The trial court added that the time might be short and yet the killing premeditated if the fixed intent to kill was formed long enough before the actual killing to permit some reflection on the part of the person forming it, and that the person was at the time fully conscious of a settled purpose to kill.

Upon conviction on all counts, a separate and extensive sentencing hearing was held pursuant to Florida law and the trial jury unanimously recommended that the Petitioner be sentenced to life imprisonment. The trial judge however disregarded this recommendation and on April 27, 1978 sentenced Petitioner to die, entering written findings in support of the death sentence on May 23, 1978.

B. The Appeal

On appeal, the Supreme Court of Florida affirmed the Petitioner's judgment and sentence. White v. State, 403 So.2d 331 (Fla. 1981). The essential facts are not in dispute and were found by the Florida Supreme Court on appeal to be the following:

On July 27, 1977, at approximately 8:15 p.m., an adult black male, posing as an employee of the power company, requested permission from Margaret Wooden to enter her home and check the electrical system. After being allowed in and checking outlets in several rooms, the intruder drew a gun and proceeded to tie Ms. Wooden's hands behind her back and blindfold her. The intruder, who identified himself to her as "Lucky" and was later identified as John Ferguson, asked Ms. Wooden for drugs, money and jewelry and began searching the premises. Ferguson's coconspirators, defendant and Marvin Francois, soon entered the house. Both of these men were also armed and all three donned masks covering their faces from the nose down. The three ransacked the house looking for valuables until about an hour later when the owner of the house, Livingston Stocker, and five of his friends arrived. Upon their arrival, Stocker and his friends were forced to lie facedown on the floor while their hands were tied behind their backs. A short time later, Ms. Wooden's boyfriend arrived at the house and he too was tied up. At gunpoint the victims were asked for money and drugs, and one by one were searched. At some point during the ordeal the mask of one of the intruders fell from his face and a discussion ensued as to the need for killing the victims. Following this discussion, Ms. Wooden and her boyfriend were moved back to the bedroom while the other six victims were held captive in the living room. Ferguson then shot Ms. Wooden and her boyfriend in the back of the head while Francois systematically shot the other six victims in the head. Miraculously, Ms. Wooden and a Johnnie H. Hall survived and testified at the trial of defendant.

At trial, Hall was able to identify the defendant as one of the intruders, but both Hall and Ms. Wooden identified the other two intruders as the persons who did the actual shooting.

A fourth participant in these crimes, Adolphus Archie, testified on behalf of the state in return for being allowed to plead guilty to reduced charges. Archie, who served as the "wheelman" and never entered the house, identified the defendant as a participant in the criminal scheme. Archie testified that he and defendant had been requested to participate in the "ripoff of a dope man" but were instead duped into participating in what he said was a planned contract murder of Stocker and perhaps other persons for drug-related reasons. Following the slayings, Archie testified that he met the other three at defendant's motel room where the proceeds of the robberies were divided among them. He testified that the defendant was upset and refused to participate in the disposal of the weapons.

The defendant was arrested on September 2, 1977 and confessed to participation in the criminal episode. His detailed account of what had occurred was consistent with the trial testimony of the surviving victims. The defendant was also linked to the scene of the crimes by a single partial fingerprint which was lifted from the dust cover of a stereo set in the house. This fingerprint was identified by police as the fingerprint of the defendant.

403 So.2d at 333.

On appeal Petitioner raised a variety of objections to the conviction, including the contention that the Florida death penalty statute violated the Eighth Amendment prohibition against cruel and unusual punishment in that it permitted the infliction of death upon a defendant who lacked a purpose to cause the death of his victim, relying upon the separate opinion of Justice White in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Florida Supreme Court rejected that contention and rejected the rationale ultimately adopted by the Supreme Court of the United States in Enmund v. Florida, supra, noting that the plurality opinion in Locket v. Ohio did not forbid a state from enacting a felony murder statute, nor from making aiders and abettors equally responsible with principles.

Petitioner also attacked the imposition of the death penalty urging that varying aggravating factors had been...