Reddix v. State

ON PETITION FOR REHEARING EN BANC.

ANDERSON, Justice,

for the Court:

I.

The original opinion in this case was handed down August 24, 1988, affirming the sentence of death imposed on Willie N. Reddix. Reddix filed a petition for rehearing arguing that his death sentence can not withstand either the Enmund requirements or proportionality review. We find the petition for rehearing well-taken and withdraw the original opinion.

In February 1975, Reddix was indicted by a Harrison County Grand Jury for the capital murder of Arthur Weinberger. He was tried on the indictment in 1975, convicted and sentenced to death. The conviction was reversed and a retrial ordered by this Court under Jackson v. State, 337 So.2d 1242 (Miss.1976). Reddix v. State, 342 So.2d 1306 (Miss.1977) (Reddix I). He was again convicted of capital murder and sentenced to death. An appeal was taken to this Court, and we affirmed. Reddix v. State, 381 So.2d 999 (Miss.1980) (Reddix II).

Reddix filed a petition for writ of certio-rari with the United States Supreme Court, which was denied November 10, 1980, Reddix v. Mississippi, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). He then filed an application for leave to file a petition for writ of error coram nobis with this Court which petition was denied without opinion on February 18, 1981.

After denial of state post-conviction relief, Reddix filed a petition for writ of habeas corpus with the' United States District Court for the Northern District of Mississippi. That petition was transferred to the Southern District of Mississippi on motion of the court, and on November 10, 1982, that court entered findings of fact and conclusions of law granting the State’s motion for summary judgment and dismissing Reddix’ petition. On December 7,1982, petitioner filed a motion for reconsideration and, on January 20, 1983, the district court entered an order vacating its prior opinion and order and granted the writ. Further, it ordered that Reddix be released from custody immediately. Reddix v. Thigpen, 554 F.Supp. 1212 (S.D.Miss.1983).

The state appealed the order of the district court to the Fifth Circuit Court of Appeals, which affirmed the vacation of death sentence on the basis that Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), required a jury finding of intent to kill before a sentence of death could be carried out. The Fifth Circuit further reversed the lower court on the issue of releasing Reddix and remanded the case so all claims could be addressed. Reddix v. Thigpen, 728 F.2d 705 (5th Cir.1984). On petition for rehearing, the Fifth Circuit entered a second opinion holding that the evidence was sufficient to support a finding that Reddix had the personal intent to kill, but since the jury was not required to find this fact, the sentence should be vacated. Reddix v. Thigpen, 732 F.2d 494 (5th Cir.1984).

The State petitioned the United States Supreme Court for a writ of certiorari which petition was denied. Thigpen v. Reddix, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). On remand to the United States District Court for the Southern District of Mississippi, on December 23, 1985, that court denied Reddix’ writ of habeas corpus but ordered a new sentencing hearing.

On February 4, 1986, the State filed a motion to reconsider under Rule 60(b), F.R. C.P., based on the decision of the United States Supreme Court in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). The motion was denied.

An appeal was taken to the Fifth Circuit and on November 19, 1986, that court affirmed the denial of the writ of habeas corpus in Reddix v. Thigpen, 805 F.2d 506 (5th Cir.1986). The earlier opinion of the Fifth Circuit was modified insofar as it required a new jury trial on the issue of the finding of intent to kill required by Enmund v. Florida, supra. The decision stated:

... since the Mississippi Courts did not find that Reddix had a personal intent to kill, Bullock actually commands exactly the relief that we awarded: allowing the state court to address the question in the first instance. Id. [106 S.Ct.] at 699. Our mention of a jury hearing on remand to the state courts should not be taken to require a jury determination of this issue, however. Id., at 700.

805 F.2d at 517. See, Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). This cause is currently before this Court on the state's motion to reinstate the death sentence and to set a new execution date for Reddix.

A.

IS THE SENTENCE OF DEATH DISPROPORTIONATE TO THE PENALTY IMPOSED IN SIMILAR CASES, CONSIDERING BOTH THE CRIME AND THE APPELLANT?

The United States Constitution and Section 99-19-105, Mississippi Code Annotated (Supp.1988), require that we perform a proportionality review whenever the death penalty is imposed. We performed such a review and affirmed in Reddix II, 381 So.2d at 1011-13. However, the passage of time and subsequent developments convince us that the proportionality of Reddix’ sentence must be reconsidered.

The crime underlying Reddix’ conviction occurred approximately fourteen years ago, on December 2, 1974. At that time Reddix was eighteen years old, suffering some mental illness and mild retardation. Reddix’ accomplice, Larry Jones, was also a borderline to mildly retarded man.

The facts of the crime come from Reddix’ confession. He and Jones had a plan to rob Arthur Weinberger, a Biloxi clothing store owner. Reddix distracted Wein-berger “to keep him from seeing Larry [Jones]”. Nothing in the confession tells us what it was that Reddix was to keep Weinberger from seeing Jones do. Reddix watched during the three seconds it took for Jones to hit Weinberger “about three times” with a wrench. Reddix did nothing physically to assist Jones in this assault. Reddix later checked to see if Weinberger was dead and, finding him alive, placed Weinberger’s coat under his head before leaving the store.

In Bullock v. State, 525 So.2d 764 (Miss.1987), five members of this Court concurred in fixing the appellant’s sentence at life imprisonment. Three justices did so on the basis that the appellant’s death sentence was disproportionate to the penalty imposed in similar capital cases. Bullock, 525 So.2d at 769-770.

The facts upon which we relied in Bullock are virtually indistinguishable from the facts before us today, except that Reddix is, if anything, less culpable than was Bullock. Bullock actively assisted his accomplice by holding their victim down while the fatal blows were administered. Bullock, 525 So.2d at 768-69.

Our proportionality decision in Bullock, rested on the fact that, with only two exceptions, “no capital defendant has had a death sentence affirmed in this state where the sole finding was that he contemplated that lethal force would be used.” Bullock, 525 So.2d at 770. We also noted that Bullock’s accomplice, the actual killer, had received a life sentence, a point reinforcing our determination that justice required fixing Bullock’s sentence at life imprisonment. Id. The same is true here. The United States District Court for the Southern District of Mississippi recently ordered that the State of Mississippi impose upon Larry Jones, the actual killer, a life sentence. Jones v. Smith, 685 F.Supp. 604, 607 (S.D.Miss.1988). Therafter, the Harrison County Circuit Court sentenced Jones to life imprisonment.

Accordingly, we hold that Reddix’ death sentence is disproportionate to the penalty imposed in similar capital cases, considering both the crime and the appellant. It should be noted that at the time of our original proportionality review of this case, Enmund v. Florida, supra, had not yet been decided. Recognizing that whether or not Reddix’ death sentence is proportional becomes irrelevant if Enmund requisites do not exist, we address the Enmund issue.

B.

DOES THE RECORD REFLECTING THE EVIDENCE IN THIS CASE MEET THE ENMUND TEST FOR IMPOSING THE DEATH SENTENCE?

In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court held 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.” Enmund, 458 U.S. at 797, 102 S.Ct. at 3376, 73 L.Ed.2d at 1151. In Bullock v. State, 525 So.2d 764 (Miss.1987), we held that this Court has the authority to determine from the record whether or not the Enmund requisites have been proven beyond a reasonable doubt. Bullock, 525 So.2d at 768. We further held that where we are unable to determine that at least one of the En-mund requisite is reflected in the record, the case must be remanded to the trial court for an Enmund hearing. Bullock, 525 So.2d at 768.

Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), upon which we relied in Bullock, offered another alternative. The United States Supreme Court stated that rather than determining the existence of Enmund requisite facts, we may impose a life sentence. See, Bullock, 525 So.2d at 769. We choose, in this instance, to impose a sentence of life imprisonment on Willie N. Reddix.

The issue of Reddix’ state-of-mind has become clouded by facts, not contained in the original record, with which we have been presented today. These facts come to us in the form of affidavits from the chief investigator of the crime and from Reddix’ partner in crime. Their statements seriously call into doubt any factual evidence that Reddix intended to kill or contemplated that lethal force would be employed, which might have been gleaned from between the lines of his confession. This situation would mandate a remand to the trial court for an evidentiary hearing on the issue of Reddix’ intent to kill or knowledge that lethal force would be employed. Rather than so doing, at this late date, we recognize the Eighth Amendment prohibition against imposition of the death penalty on one who has not been found to have had any such intent or knowledge and fix Red-dix’ punishment at life imprisonment.

Accordingly, this case is remanded to the Circuit Court of Harrison County with instructions that Willie N. Reddix be sentenced to life imprisonment.

PETITION FOR REHEARING GRANTED; MOTION TO REINSTATE DEATH SENTENCE AND SET NEW EXECUTION DATE OVERRULED; REMANDED TO THE CIRCUIT COURT OF HARRISON COUNTY FOR RESENTENCING. ORIGINAL OPINION WITHDRAWN.

HAWKINS, P.J., concurs and files specially concurring statement.

DAN M. LEE, P.J., and PRATHER, J., concur as to life sentence.

ROY NOBLE LEE, C.J., and SULLIVAN, J., dissent.

ROBERTSON, PITTMAN and BLASS, JJ., not participating.

. The full text of Reddix’ confession can be found in Reddix v. State, 381 So.2d 999, 1002-03 (Miss.1980).