*1 impugn Attorney General’s denied to all other class either the tive relief were discharge of acting only representative, representatives’ the class members. deci disregarding their responsibility, apart in his interest and from own issues, peti judgment his and went Hill’s appeal, class took sion not to we DISMISS representative his home. Once the secured tion. class
judgment, his interest and that of the that, repre
diverged. held because the We adequately advanced the
sentative had not class, judgment the entire
interests of In the judicata as to them. res case, pro
present intervention State advocacy of the State’s interests and
vided pros consequently Hill’s official interest as BULLOCK, Jr., allega Hill ecutor for the State. makes no Petitioner-Appellant, representatives’ interests di tion that the verged from his. LUCAS, Warden, Eddie and State of govern in which the This is not a case Mississippi, Respondents-Appellees. an ment’s interests conflicted with those of personal only asserts individual who No. 83-4702. Attorney The Texas General has stake.38 sovereign interests of the decided Appeals, United States Court of by foregoing appeal an State are served Fifth Circuit. prov neither Hill’s
this case. It should be 21, Sept. 1984. question judgment. ince nor ours to observed, previously “The Tex As we have Rehearing En Banc Rehearing and have held that the Constitution as courts 31, Denied Oct. 1984. authority rights to enforce the vests exclusively in the state’s attor neys.” III. embody poten
Defendant class actions unfairness to class
tial for absent members plaintiff makes an initial Here, representative.40
choice of class
however, question there is of neither the
competency adequacy rep of these nor the and, important, more the true
resentatives stake, that of the State of Texas
interest constitutionality duly of its enacted by the
legislation, was defended State’s legal and chief officer. spokesman
own allege any Hill failed to facts
Because has Workers, See, strange e.g., is a situation Trbovich v. United Mine where one 40. ‘‘[I]t side 38. 538-40, 630, 636-37, generals picks enemy’s army.” 404 U.S. out the 686, 694-96, (1972) (allowing Chafee, intervention L.Ed. Equity (1950); Z. Some Problems of protect his interest because Note, union member generally see Certification of Defendant rights Secretary protects Labor of union 23(b)(2), Classes Under Rule 84 Colum.L.Rev. public interests of the in dem- members and the (1984). 1385-87 elections). ocratic Estelle, 1212 n. 18 McGee v. 722 F.2d Cir.1984) (en banc).
245
Garwood,
corpus,
Judge,
suance of a writ of habeas
to the
concurred
Circuit
Bullock,
sen-
opinion.
end that Crawford
Jr. be
filed
a
imprisonment
tenced to
accorded
sentencing hearing consistent herewith.
Background
Contextual
guilty
was found
murder,
in a felo
of the offense
setting, by Mississippi
a
state
ny-murder
by
to death
jury and sentenced
lethal
court
af
gas. His conviction and sentence were
Mississip
by
Supreme
firmed
Court
State,
v.
(Miss.
pi,
POLITZ, Judge: Circuit leading homicide The events brutal v. began this case Enmund teachings of is at core of Informed which 1978, Florida, evening September 102 73 hours of 458 U.S. leg encased in a inter (1982), guided by, with one L.Ed.2d when cast, repaired alia, Thig Ricky Tucker our recent decision Reddix denied, Jackson, Cir.), reh’g (5th F.2d Town Creek Saloon pen, Cir.1984), night drinking. Sometime after direct is- for a F.2d 494 we *GARWOOD, Judge, concurring. Circuit house, garden Bullock's
midnight accepting secured a hose they left tavern Byram, driv- Mark Dickson because their then to a lake near ride from motored Tucker’s way lake, had left earlier. On the Mississippi. they er removed At stop house Bullock asked Dickson clothing, placed Dickson's outer concrete buy loaf of so he could convenience store underclothes, wrapped the blocks inside his *3 money for gave Dickson Bullock bread. submerged body and the hose around his bread, no purchase. The store had the body body pulled in the Tucker the lake. money the Dickson’s and Bullock returned lake, helped into the Bullock followed and drive resumed. press it into the lake’s bottom. journey the the men continued As three apprehended Tucker and Bullock were heavily they place, drank towards Tucker’s of and indicted for the offense rob- whiskey. point from a bottle of At some bery-murder Ann. in violation of Miss.Code he car so stop Dickson to the Bullock asked § 97-3-19(2)(e), on death of Dick- based the re- Upon answer a call of nature. could taking in son connection with felonious vehicle, Tuck- turning Bullock heard to the of and The Dickson’s auto wallet. two Tucker arguing heard and Dickson and er separately. miscreants tried Tucker were Ap- pull gun.” say, “Don’t make me this impris- was convicted and sentenced to Tucker indebted to parently Dickson was Bullock, noted, convicted onment. as was insisting after he had drugs illicit and for and sentenced to death. pay- money offered Tucker his auto no and ment. Bullock reentered the vehicle Analysis argument trip resumed and the both Supreme In Court driving. finally Dickson Dickson with eighth held that amendment forbids stopped the car near a construction site and “imposition on one ... exchanged Tuck- Tucker blows. At he and felony aids in the course who and abets grabbed importuning, Bullock Dickson er’s by a murder is committed others of which away Dickson and ran from but broke kill, attempt himself who does not but pursuit wielding the with Tucker in car kill, place take or or intend that by whiskey bottle. down slowed employed.” will be that lethal force 458 cast, trailed Tucker tackled his behind. 3376-77. The at 102 S.Ct. at U.S. and Bullock reached them Dickson when emphasized focus Court “[t]he fighting. grabbed the two were particular cul must be on by defendant’s] holding [the Dickson was him for and who commit pability, not on that those on the Tucker struck Dickson head when victims, shot ted the and whiskey bottle. blow head with the insist on ‘individualized consideration as hand and cut we the bones broke requirement imposing Dickson his fists Tucker struck with a constitutional it. ” sentence,’ (citations omitted). then ground, Dickson fell the death until See him in head. Tucker continued at 3377. kicked 458 U.S. 102 S.Ct. at — Oklahoma, smashing -, by assault Dickson U.S. 104 Smith (1983) and over (vacating head with concrete block over L.Ed.2d Dickson until died. remanding for further death sentence and Enmund); Skil consideration Dick- they suggested Tucker burn Estelle, (5th Cir.1983). F.2d lern v. car; body countered son’s sought capsúlate Reddix we these they dispose suggesting that of Dickson’s “Enmund observing, recog directives course body nearby in a lake. The latter unique that the death is its nizes load- body Dickson’s was followed and was consequent severity irrevocability; and its the car. took Dickson’s wallet ed in Tucker it, may impose ly, before the state away he it contained threw when saw but personal intent and must focus on the cul money. then drove Tucker and Bullock no himself, and pability of the defendant from cleaned the blood to a carwash and accomplice.” 728 F.2d Thereafter, merely that of an they drove exterior. the car’s Accordingly, County, fact Hinds Mississippi, while trier of District of may impute intent to an aider and abettor present, con- determining guilt, that purpose to, encouraged sented the commis- pur- imputation may not be done for the thereby sion of a crime and aided another Red- pose imposing penalty. the death he, individual, and that the said Crawford dix; Skillern. Bullock, Jr. or the other then and there willfully, unlawfully feloniously did sen Bullock contends that his death carry away take personal proper- constitutionally infirm under En tence is ty presence of another from the of Mark mund the instructions to Dickson, person, against and from his spe permitted the death sentence without a will, by person, violence to his to-wit his killed, Bullock either at cific billfold one 1978 Thunderbird automo- kill, killing or the tempted or intended a *4 possession, bile then in his then and in argu the force. Such was use of lethal event, Defendant, that the Crawford per Reddix. We in were proffered ment Reddix; guilty Jr. is of as if he so in we are likewise now suaded had with his own hands committed the persuaded. offense; and, whole if Jury the Mississip- was convicted under Bullock ease, finds from the evidence in this be- provides pi’s capital murder statute which yond doubt, a reasonable that on said pertinent part: in aforesaid, engaged date while in the com- killing being human the of a without mission of the robbery, any, aforesaid if any in authority any of law means or Bullock, Jr., the that said Crawford did capital murder ... manner shall be alone, acting or while in concert with any design to When done with or without another, present while at said time and death, in by any person engaged effect place by consenting of the of the crime of the commission ... rob- Dickson, said Mark and that the said any attempt in bery or to commit ... Bullock, Jr., any Crawford did overt act such____ immediately which was connected with or § 97-3-19(2)(e). Ann. The stat- Miss.Code commission, leading to its without au- ute, permitting guilty in a of verdict absent law, thority necessary of and not in self death, design of a to effect allows defense, means, manner, by any any imputation the of intent from one defend- any or whether done with without de- noted, neither Enmund ant to another. As sign the death the said Mark to effect of any purports decision of this court to nor Dickson, then, event, and in that the pronouncements interfere with state’s Bullock, Jr., guilty said is of Crawford substantively defining criminal offenses. murder, capital your and the form of may on im- Guilt of the offense be based form, following verdict should be in the intent; capital punishment may puted not separate paper: written on a sheet of of Enmund and light progeny, its be. Defendant, “We, Jury, the find the Craw- taken to assure that the trier care must be Bullock, Jr., guilty Capital ford of Mur- applicable not confuse the of fact does der.” guilt determination of standard for the constitutionally the standard mandated guilty, jury After the found Bullock the punishment. determination of the sentencing phase trial the continued with tri- Mississippi prosecutor bifurcates offense at which the and the defense § Ann. 99-19-101. At the presented aggravating als. Miss.Code of and mi evidence guilt phase judge the trial tigating conclusion of the factors. At the conclusion of that ours): charged jury (emphasis the hearing, jury weigh was instructed to evidence, aggra balance relevant Jury you that if The Court instructs factors, case, vating mitigating impose from the evidence this believe Sep- imprison of either death that on sentence or beyond a reasonable doubt § 21, 1978, Ann. in the First Judicial ment. Miss.Code 99-19-101. Be tember any personal participation Mississippi death kill or existing cause the then require,1 killing. It is penalty did not so not unreasonable infer statute jury further instruction gave jury may court no have reached result sentencing phase requiring jury despite concluding at the did both intent and personal on Bullock’s focus design no to effect death had by Enmund. culpability as mandated being potential- affray reached the level only after Bullock ly fatal to Dickson well of death con- find Bullock’s sentence We any personal away and ceased had backed no error stitutionally perceive infirm. We Had the case participation it. not been proportions or of constitutional lesser theory of the then tried on the conviction; undisturbed. But that remains whiskey or had Dickson died from law stand in may of death head, to his we would have to bottle blow permit would of the instruction which adequacy of the instructions in a assess imposition materially context. different merely participated design any robbery “with without Mark Dickson.” the death of the said
effect accordingly direct issuance of writ
We corpus vacating the death sentence
habeas permitting but option, Mississippi, at its
the State of *5 imprison- impose a sentence of
either time, or, period of
ment within reasonable hearing sentencing consist- conduct a new COLLINS, Plaintiff-Appellant, Michael ent herewith. v. and re- REVERSED RENDERED KING, Department Secretary, T. John with instruc- turned to the district court Corrections, al., et tions. Defendants-Appellees. GARWOOD, Judge, concurring: Circuit No. 83-3255. Judge persuasive I Politz’s concur Appeals, United States Court appended only These are opinion. remarks Fifth Circuit. do my understanding that we reflect may not death be
hold that Sept. 1984. “ participant imposed upon ‘... felony who lacked the commission of part take intent to murder but did
requisite killing Thig- Reddix v.
in the actual ...’.” Cir.1984) (5th (quot-
pen, 732 F.2d Francis, 727 F.2d
ing from Drake Cir.1984)). Here, however, ap-
pears essentially entire case was theory, in full accordance with
tried on the Mississippi, that it was not law of
the then felony murder
necessary, either death, or for sentence
conviction the intent to had either
find that Bullock killed; (a) actually Following The defendant in 1983 kill; (b) attempted Miss.Code The defendant death statute. amended its 99-19-101(7) (c) provides: that a The defendant intended take now §Ann. place; impose sentence to return and In order (d) contemplated that lethal The defendant must a written make employed. would be force following: one or more