Cabana v. Bullock

474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704, 1986 U.S. LEXIS 46, 54 U.S.L.W. 4105

• Court: Supreme Court of the United States
• Decided: January 22, 1986
• Docket: 84-1236
• Status: Published

Opinions

Justice White

delivered the opinion of the Court.

In Enmund v. Florida, 458 U. S. 782 (1982), we 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.” Id., at 797. This case requires us to determine in whose hands the decision that a defendant possesses the requisite degree of culpability properly lies.

I

Early in the morning of September 22, 1978, respondent Crawford Bullock and his friend Ricky Tucker accepted Mark Dickson’s offer of a ride home from a bar in Jackson, Mississippi. During the course of the ride, Tucker and Dickson began to argue about some money Dickson supposedly owed Tucker. The argument became a fight: Dickson stopped the car, and Dickson and Tucker exchanged blows. Bullock attempted to grab Dickson, but Dickson eluded his grasp and fled from the car. Tucker gave chase and succeeded in tackling Dickson, while Bullock, who had a cast on his leg, followed more slowly. When Bullock caught up with the struggling men, he held Dickson’s head as Tucker struck Dickson in the face with a whiskey bottle. Tucker then pummeled Dickson with his fists until Dickson fell to the ground. As Dickson lay helpless, Tucker killed him by smashing his skull with repeated blows from a concrete block. Bullock and Tucker together disposed of Dickson’s body, and Bullock kept Dickson’s car for himself. Bullock was arrested the next day when police spotted him driving the car. Under questioning at the police station, he confessed to his participation in the course of events just described.

Bullock was charged with capital murder under a Mississippi statute that provided that “[t]he killing of a human being without the authority of law by any means or in any manner shall be capital murder . . . [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of. . . robbery ... or in any attempt to commit such.” Miss. Code Ann. § 97-3-19(2)(e) (Supp. 1985). Under Mississippi law, a participant in a robbery could be convicted of capital murder under the statute for a murder committed in the course of the robbery by an accomplice notwithstanding the defendant’s own lack of intent that any killing take place, for “[i]t is . . . familiar law that when two or more persons act in concert, with a common design, in committing a crime of violence upon others, and a homicide committed by one of them is incident to the execution of the common design, both are criminally liable for the homicide.” Price v. State, 362 So. 2d 204, 205 (Miss. 1978). In accordance with this doctrine of accomplice liability, the court instructed the jury at the conclusion of the guilt phase of Bullock’s trial as follows:

“The Court instructs the Jury that if you believe from the evidence in this case, beyond a reasonable doubt that on September 21, 1978, in the First Judicial District of Hinds County, Mississippi, Crawford Bullock, Jr., was present, consented to, and encouraged the commission of a crime and thereby aided another individual, and that he, the said Crawford Bullock, Jr., or the other, then and there did wilfully, unlawfully and feloniously take and carry away the personal property of another from the presence of Mark Dickson, and from his person, against his will, by violence to his person, to-wit [sic]; his billfold or one 1978 Thunderbird automobile then in his possession, then and in that event, the Defendant, Crawford Bullock, Jr. is guilty of robbery as if he had with his own hands committed the whole offense; and, if the Jury further finds from the evidence in this case, beyond a reasonable doubt, that on said date aforesaid, while engaged in the commission of the aforesaid robbery, if any, that the said Crawford Bullock, Jr., did alone, or while acting in consert [sic] with another, while present at said time and place by consenting to the killing of the said, Mark Dickson, and that the said Crawford Bullock, Jr., did any overt act which was immediately connected with or leading to its commission, without authority of law, and not in necessary self defense, by any means, in any manner, whether done with or without any design to effect the death of the said Mark Dickson, that the[n], and in that event, the said Crawford Bullock, Jr., is guilty of capital murder.” App. 87-89.

The jury found Bullock guilty of capital murder. Following a separate sentencing hearing, the jury found that two statutory aggravating circumstances were present and that they were not outweighed by any mitigating circumstances. Accordingly, the jury sentenced Bullock to death.

On appeal to the Mississippi Supreme Court, Bullock argued, inter alia, that the evidence was insufficient as a matter of law to allow submission of the capital murder charge to the jury and that the imposition of the death penalty on him would be so disproportionate to his level of involvement in the crime as to violate the Eighth Amendment. The court rejected both contentions. Bullock v. State, 391 So. 2d 601 (1980), cert. denied, 452 U. S. 931 (1981). The court ruled that the verdict of capital murder was sustainable in view of the “overwhelming” evidence “that [Bullock] was present, aiding and assisting in the assault upon, and slaying of, Dickson . . . and in the taking of the T-bird automobile, which was in the lawful possession and use of Dickson.” 391 So. 2d, at 606. With respect to Bullock’s claim that the punishment of death was disproportionate to his degree of culpability, the court noted that “[t]he law is well settled in this state that any person who is present, aiding and abetting another in the commission of a crime, is equally guilty with the principal offender.” Because Bullock was “an active participant in the assault and homicide committed upon Mark Dickson,” the court concluded that the punishment was not disproportionate to his guilt. Id., at 614.

After exhausting state postconviction remedies, Bullock filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Mississippi. The District Court denied the writ, but the Court of Appeals for the Fifth Circuit reversed on the ground that Bullock’s death sentence was invalid under our decision in Enmund, which was handed down during the pendency of the District Court proceedings. Bullock v. Lucas, 743 F. 2d 244 (1984). The court based this conclusion solely upon its reading of the jury instructions given at Bullock’s trial. The court reasoned that under the instructions offered at the guilt phase and quoted in pertinent part above, the jury could have found Bullock guilty of capital murder solely on the basis of his participation in a robbery in which he had aided and abetted someone else who had killed: the instructions did not require a finding of any intent to kill on Bullock’s part, nor did they require the jury to find that Bullock had actually killed. In addition, the court noted that the instructions offered the jury at the sentencing phase nowhere required the jury to make any further findings regarding Bullock’s personal involvement in the killing. Thus, it was quite possible that the jury had sentenced Bullock to death without ever finding that he had killed, attempted to kill, or intended to kill. In the court’s view, Enmund prohibited execution of a defendant absent such findings by the trier of fact; accordingly, the court granted a writ of habeas corpus vacating Bullock’s death sentence, but permitting the State, “at its option, to either impose a sentence of life imprisonment or, within a reasonable period of time, conduct a new sentencing hearing” at which with the proper findings a death sentence could be reimposed. 743 F. 2d, at 248.

Because the Fifth Circuit’s holding that Enmund can be satisfied only by findings made at the guilt-innocence or sentencing phase of a trial (see also Reddix v. Thigpen, 728 F. 2d 705 (CA5 1984)) conflicts with the interpretation of Enmund adopted by the Eleventh Circuit, see Ross v. Kemp, 756 F. 2d 1483 (1985),¹ we granted certiorari, 471 U. S. 1052 (1985).

hH

The Court of Appeals was correct in concluding that neither the jury’s verdict of guilt nor its imposition of the death sentence necessarily reflects a finding that Bullock killed, attempted to kill, or intended to kill. The jury instructions at the guilt phase were, to say the least, confusing, and they do not lend themselves easily to any particular interpretation. A fair-minded juror, however, could have understood them to mean that the jury could find Bullock guilty of capital murder without regard to his intent and solely by virtue of his having aided his accomplice at some point in the assault that led to the killing.² This interpretation of the instructions is buttressed, as Judge Garwood pointed out in his concurring opinion below, by the fact that “the entire case was essentially tried on the theory, in full accordance with the then law of Mississippi, that it was not necessary, either for the felony murder conviction or for the sentence to death, to find that Bullock had either the intent to kill or any personal participation in the killing.” 743 F. 2d, at 248. Thus, the jury may well have sentenced Bullock to death despite concluding that he had neither killed nor intended to kill; or it may have reached its decision without ever coming to any conclusion whatever on those questions.

hH I — I > — I

But the conclusion that the jury may not have found that the defendant killed, attempted to kill, or intended that a killing take place or that lethal force be employed does not end the inquiry into whether Enmund bars the death sentence; rather, it is only the first step. In focusing only on the jury instructions — and in requiring a new sentencing hearing before a jury before the death penalty might be reimposed — the Fifth Circuit apparently proceeded upon the premise that Enmund can be satisfied only at a sentencing hearing and by a jury’s decision (presumably based upon proof beyond reasonable doubt) that the defendant possessed the requisite culpability. Examination of the nature of our ruling in Enmund reveals that this premise is erroneous.

A defendant charged with a serious crime has the right to have a jury determine his guilt or innocence, Duncan v. Louisiana, 391 U. S. 145 (1968), and a jury’s verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, Sandstrom v. Montana, 442 U. S. 510 (1979). Findings made by a judge cannot cure deficiencies in the jury’s finding as to the guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime. See Connecticut v. Johnson, 460 U. S. 73, 95, and n. 3 (1983) (Powell, J., dissenting); cf. Beck v. Alabama, 447 U. S. 625, 645 (1980); Presnell v. Georgia, 439 U. S. 14 (1978); id., at 22 (Powell, J., dissenting). 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 has recognized, Enmund “does not affect the state’s definition of any substantive offense, even a capital offense.” Reddix v. Thigpen, 728 F. 2d, at 709; see also Enmund, 458 U. S., at 810, n. 19 (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.³

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 U. S. 447 (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. See, e. g., Solem v. Helm, 463 U. S. 277 (1983); Weems v. United States, 217 U. S. 349 (1910).

The determination whether the death sentence is permissible under Enmund is different in a significant respect both from the general exercise of sentencing discretion and from the type of Eighth Amendment proportionality inquiry undertaken in Solem v. Helm. The latter two determinations typically involve case-by-case, totality-of-the-circumstances decisionmaking. Enmund, by contrast, imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death. Nonetheless, the rule remains a substantive limitation on sentencing, and like other such limits it need not be enforced by the jury.

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 464; see also Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S. 862 (1983); Gregg v. Georgia, 428 U. S. 153, 195 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

Accordingly, when .a federal habeas court reviews a claim that the death penalty has been imposed on one who has neither killed, attempted to kill, nor intended that a killing take place or lethal force be used, the court’s inquiry cannot be limited to an examination of jury instructions. 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.⁴ If it has, the finding must be presumed correct by virtue of 28 U. S. C. § 2254(d), see Sumner v. Mata, 449 U. S. 539 (1981), and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund is not offended by the death sentence.⁵

> I — I

The Court of Appeals thus erred m focusing exclusively on the jury and in ordering a new sentencing hearing without inquiring whether the necessary finding of intent had been made by the trial court or by the state appellate court. The State argues that the Mississippi Supreme Court itself made a finding sufficient to satisfy Enmund in the course of its direct review of Bullock’s conviction and sentence. It relies on two separate statements in the court’s opinion. First, in responding to the claim of insufficient evidence, the court said that “[t]he evidence is overwhelming that appellant was present, aiding and assisting in the assault upon, and slaying of, Dickson.” 391 So. 2d, at 606. Second, in determining that the death penalty was not disproportionate to the sentences imposed in other cases, the court stated that “[t]he evidence is overwhelming that appellant was an active participant in the assault and homicide committed upon Mark Dickson.” Id., at 614.

We are very doubtful, however, that these assessments of the record were sufficient in themselves to constitute a finding that Bullock killed, attempted to kill, or intended to kill Dickson. The Mississippi Supreme Court obviously was not addressing the specific requirements set forth in Enmund, for that case had not yet been decided. Rather, the court’s remarks are better read as stating the court’s conclusion that Bullock’s participation in the assault and robbery were sufficient to make him liable for the murder and deserving of the death penalty in light of Mississippi law under which one who takes some overt act in aid of an assault that leads to a killing by his accomplice is equally responsible with the accomplice for the killing. Indeed, immediately before its statement with respect to proportionality, the court said that “[t]he law is well settled in this state that any person who is present, aiding and abetting another in the commission of a crime, is equally guilty with the principal offender.” 391 So. 2d, at 614. In other words, the Mississippi court’s statements represent at most a finding that, as the District Court put it, Bullock “by legal definition actually killed.” App. to Pet. for Cert. A30-A31 (emphasis added). Such a finding does not satisfy Enmund, for Enmund holds that the Eighth Amendment does more than require that a death-sentenced defendant be legally responsible for a killing as a matter of state law; it requires that he himself have actually killed, attempted to kill, or intended that lethal force be used.

V

There remains the question of the appropriate course of action for a federal court faced with a petition for habeas corpus raising an Enmund claim when the state courts have failed to make any finding regarding the Enmund criteria. Two possibilities come immediately to mind. The federal court could itself make the factual determination whether the defendant killed, attempted to kill, or intended to kill, and either grant or deny the writ depending on the outcome of that inquiry. Alternatively, the federal court could take steps to require the State’s own judicial system to make the factual findings in the first instance. Such findings would, of course, be presumptively correct as a result of 28 U. S. C. § 2254(d) in any subsequent federal habeas proceedings.

Either alternative would, in theory, be adequate to remedy any hypothesized Eighth Amendment violation, for either approach would prevent the execution of any defendant who did not in fact kill, attempt to kill, or intend the use of lethal force. We believe, however, that the second course of action is the sounder one. Two considerations underlie this conclusion. First, to the extent that Enmund recognizes that a defendant has a right not to face the death penalty absent a particular factual predicate, it also implies that the State’s judicial process leading to the imposition of the death penalty must at some point provide for a finding of that factual predicate. Accordingly, Bullock “is entitled to a determination [of the issue] in the state courts in accordance with valid state procedures.” Jackson v. Denno, 378 U. S. 368, 393 (1964). Second, the State itself has “a weighty interest in having valid federal constitutional criteria applied in the administration of its criminal law by its own courts.” Rogers v. Richmond, 365 U. S. 534, 548 (1961). Considerations of federalism and comity counsel respect for the ability of state courts to carry out their role as the primary protectors of the rights of criminal defendants, see Younger v. Harris, 401 U. S. 37 (1971); these same considerations indicate the appropriateness of allowing the Mississippi courts an opportunity to carry out in the first instance the factual inquiry called for by Enmund. To paraphrase our opinion in Jackson v. Denno, supra, at 393-394, it 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.⁶

<1 I — I

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.⁷ 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.

It is so ordered.

1 Under the interpretation of Enmund adopted by the Eleventh Circuit in Ross, a jury finding that the defendant possesses the requisite culpability is not required by the Eighth Amendment. 756 F. 2d, at 1488. In the absence of such a finding, Ross holds, the Eighth Amendment requires no more than that a federal habeas corpus court conduct an independent review of the record to determine whether the defendant’s “level of individual participation. . . justifies the application of the death penalty.” Id., at 1489. We agree that if the federal court made the Enmund finding, the Eighth Amendment would be satisfied, but as will appear, we hold that the state courts should be given the opportunity to address the matter in the first instance.

2 An instruction offered after the one quoted supra, at 380, informed the jury that to find Bullock guilty of capital murder, it must find that he “did in fact kill Mark Dickson without malice, without authority of law, and not in necessary self defense.” App. 90-91. This instruction does not change our view that the jury’s verdict does not necessarily reflect a finding that Bullock killed. The preceding instruction had explicitly informed the jury that it could find Bullock guilty if his accomplice had done the actual killing. The jury could well have concluded, reading the instructions together, that the instruction that Bullock must have “in fact killed” referred only to a requirement that Bullock have committed acts that rendered him legally accountable for the killing under the previous instruction. Under this reading of the instructions, the earlier, more specific instruction would be read as defining the legal meaning of the requirement that Bullock must have “in fact killed.”

Even if the second instruction is read as simply irreconcilable with the first, however, we cannot conclude that the jury followed the second instruction. As was the case last Term in Francis v. Franklin, 471 U. S. 307, 322 (1985), “[njothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Moreover, to the extent that one can speculate as to which of the instructions the jurors followed in this case, it seems more likely that they would have chosen the earlier instruction, which, though somewhat harder to follow, appears to be more comprehensive and more specifically tied to the facts presented to the jury.

3 We are unable to understand Justice Blackmun’s statement that we have failed to grasp “the distinction . . . between defining an offense and being entitled to execute a defendant.” Post, at 403. As stated in the text, we recognize that there is a class of persons whom the State may define as having committed capital murder but whom the State may not permissibly execute. The point we are making, however, is that while the Eighth Amendment prohibits the execution of such defendants, it does not supply a new element of the crime of capital murder that must be found by the jury; hence, such cases as Cole v. Arkansas, 333 U. S. 196 (1948), which hold that the inadequacy of a jury’s findings on the issue of guilt or innocence may not be corrected by an appellate court, are inapposite.

4 Justice Blackmun’s reliance on Hicks v. Oklahoma, 447 U. S. 343 (1980), and Presnell v. Georgia, 439 U. S. 14 (1978), for the proposition that state appellate courts may not supply essential findings that the jury has omitted is, as applied in this case, misguided. In Hicks, we held only that where state law creates for the defendant a liberty interest in having the jury make particular findings, the Due Process Clause implies that appellate findings do not suffice to protect that entitlement. Unlike the defendant in Hicks, Bullock had no state-law entitlement at the time of his trial to have the jury (or, indeed, anyone at all) make the Enmund findings. Of course, federal law, as later established by Enmund, does entitle Bullock to a determination whether he killed, attempted to kill, intended to kill, or intended that lethal force be used; but, for the reasons explained in the text, the federal-law entitlement, unlike the state-law entitlement involved in Hicks, does not specify who must make the findings.

In Presnell, the defendant was convicted on charges of murder and kid-naping with bodily injury, and was sentenced to death by the jury. The sole aggravating factor supporting the death penalty for murder was that the defendant was also guilty of kidnaping with bodily injury. The Georgia Supreme Court found that the jury had been wrongly instructed on the elements of kidnaping with bodily injury, but affirmed both the conviction for that crime and the use of the crime as an aggravating factor on the ground that the evidence was sufficient to support the jury’s findings under a theory on which the jury had not been instructed. We set aside both the conviction and the death sentence on the authority of Cole v. Arkansas, 333 U. S. 196 (1948), which held that it was constitutional error for a state court to affirm a conviction for one offense on the basis of evidence in the record indicating that the defendant had committed another offense on which the jury had not been instructed. Insofar as it merely applied Cole in setting aside the defendant’s conviction for kidnaping with bodily injury, Presnell is unremarkable and has little to do with this case. See n. 3, supra. But in reversing as well the death sentence on the ground that the Georgia Supreme Court could not find an aggravating factor on a theory on which the jury had not been instructed, the Presnell Court appeared to assume that the jury’s constitutional role in determining sentence was equivalent to its role in determining guilt or innocence. This assumption, of course, is no longer tenable in light of our holding in Spaziano v. Florida, 468 U. S. 447 (1984).

5 Sumner, of course, establishes that the presumption applies to facts found by appellate as well as trial courts. 449 U. S., at 545-547. There might be instances, however, in which the presumption would not apply to appellate factfinding regarding the Enmund criteria because appellate factfinding procedures were not “adequate,” see 28 U. S. C. § 2254(d)(2). For example, the question whether the defendant killed, attempted to kill, or intended to kill might in a given case turn on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record, cf. Anderson v. Bessemer City, 470 U. S. 564, 575 (1985); Wainwright v. Witt, 469 U. S. 412, 429 (1985). The possibility that such cases falling within the § 2254(d)(2) exception may exist, however, does not excuse the habeas court of its obligation to examine the entire state process to determine whether the Enmund findings have been made, for it is by no means apparent that appellate factfinding will always be inadequate. For example, in some cases it may be possible to determine the Enmund issue adversely to the defendant even if credibility issues and other ambiguities in the record are resolved in his or her favor. See, e. g., Ross v. Kemp, 756 F. 2d 1483, 1488-1490 (CA11 1985). We shall not now attempt to determine what factfinding procedures would be adequate in the particular case before us, for, as we shall see, the state courts have not yet purported to engage in the requisite factfinding, and we decline to decide the hypothetical question of the adequacy of that which has not yet occurred.

6 There may be some cases in which the jury instructions would theoretically have permitted the jury to find the defendant guilty of a capital offense and sentence him to death without finding the Enmund factors, but in which the theory on which the ease was tried and the evidence received leave no doubt that the jury’s verdict rested on a finding that the defendant killed or intended to kill. For example, where a defendant conceded that he committed the killing and defended against the charge of murder only by claiming self-defense, a jury verdict of guilty would necessarily satisfy Enmund even if, for some reason, the trial court’s instructions did not explicitly require a finding that the defendant killed, attempted to kill, or intended to kill. In such a case, a federal habeas court would be justified in treating the state courts’ failure to make explicit Enmund findings as harmless beyond a reasonable doubt; the court would therefore simply deny the writ without requiring further proceedings in the state courts. Cf. Ross v. Kemp, 756 F. 2d, at 1499-1500 (Clark, J., concurring in part and dissenting in part).

7 Mississippi has adopted a post-Enmund capital sentencing statute, under which the task of determining whether the defendant killed, attempted to kill, intended to kill, or intended that lethal force be used is delegated to the jury, Miss. Code Ann. §99-19-101(7) (Supp. 1985). Whether this provision has any application where, as in this case, trial occurred prior to the passage of the statute, is a matter of state law that we do not attempt to resolve.