specially concurring:
I concur in the result and in all of Parts I and III of the majority opinion. With respect to Part II, the Enmund issue, I concur because the Florida judiciary has made the necessary Enmund findings in Ruffin’s case as required by Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). As pointed out in note 7 of the per curiam opinion, both the Florida trial court and the Florida Supreme Court considered the Enmund issue, see Ruffin v. State, 420 So.2d 591 (Fla.1982). The Florida Supreme Court at page 594 of its opinion quotes the trial court’s findings distinguishing Ruffin from Enmund and found the trial court’s findings to be supported by the record.
I disagree with the analysis in the per curiam opinion based upon this statement:
In this case, however, the jury, in finding petitioner guilty of premeditated murder, necessarily concluded that petitioner intended Mrs. Hurst’s death. An examination of the court’s charge to the jury at the conclusion of the guilt phase of petitioner’s trial makes this point clear.
At 1515. As made clear by the Supreme Court in Cabana, a decision of an Enmund issue is not made by the jury:
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 recognized, Enmund “does not affect the state’s definition of any substantive offense, even a capital offense.” Reddix v. Thigpen, 728 F.2d [705], at 709; see also Enmund, 458 U.S., at 810, n. 19, 102 S.Ct., at 3383, 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.
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[T]he 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.
106 S.Ct., at 696-97 (footnote omitted).
The law is clear that a defendant is entitled to consideration of an Enmund claim notwithstanding the jury instructions.