concurring in part and dissenting in part:
Although I concur in Parts I and III of the majority’s opinion, I respectfully dissent from Part II of the opinion.
In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the Supreme Court held that the eighth amendment forbids 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 3376-77.
In determining that Ruffin’s Enmund' claim fails, the majority reasons that “when the jury found petitioner guilty of murder, it necessarily determined as a fact that petitioner killed with premeditation; in other words the jury found that he intended the victim’s death.” Ante at 1517. Moreover, the majority reasons, “[l]ogic suggests that the finding of intent implicit in a verdict of premeditated murder should suffice.” Ante at 1517.
The majority’s reasoning is predicated on a false premise. The Supreme Court has made it clear that “ ‘Enmund does not affect [a] state’s definition of a substantive offense, even a capital offense.’ ” Cabana v. Bullock, 474 U.S. 376, 385, 106 S.Ct. 689, 696, 88 L.Ed.2d 704, 715 (1986) (quoting Reddix v. Thigpen, 728 F.2d 705, 709 (5th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984)). Additionally, in Cabana, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), the Court stated that “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.” Cabana, 474 U.S. at 385, 106 S.Ct. at 696, 88 L.Ed.2d at 715. Rather, the Court continued, En-mund concerns only that class of persons who, although guilty of capital murder as defined by state law, may not lawfully be sentenced to death because they did not kill, attempt to kill, or intend to kill. Cabana, 474 U.S. at 385, 106 S.Ct. at 696, 88 L.Ed.2d at 716.
The majority holds that the jury's conviction of Ruffin, based on a theory of premeditated murder, satisfies all Enmund concerns. To illustrate its point, the majority refers to the trial court's jury instruction which it claims, “instructed the jury that it could not find petitioner guilty of murder unless it found premeditation on his part.” See ante at 1517. Regrettably, the majority refuses to honor its own reasoning because when the jury instructions are considered as a whole, it is apparent that the jury was instructed not only on premeditated murder, but also instructed on theories of vicarious criminal liability, including aiding and abetting, and the felony murder doctrine. The jury instruction provided:
A person may commit a crime by his own personal act, or through the act or acts of another person. Any person who knowingly aids, abets, counsels, hires, or otherwise procures the commission of a crime, is equally guilty with the one who actually performs the criminal act, whether he is or is not present at the commission of the offense. However, for one person to be guilty of a crime physically committed by another, it is necessary that he have a conscious intent that the criminal act shall be done, and that pursuant to that intent he do some act or say some word which was intended to and which did incite, encourage, assist, induce, or cause another person to actually commit the crime. [Emphasis added.]
This instruction allowed the jury to find Ruffin guilty of first degree murder, and to satisfy Enmund even if it found: (1) the “crime” (sexual battery or murder?) was committed “through the act or acts of another person;” (2) he was “not present at the commission of the offense;” (3) If not present at the scene of the crime, he “procure[d] the commission of [the] crime”; (4) if he had a “conscious intent that the crimi*1521nal act [should] be done” although not present at the crime scene; (5) if not present and participating in the criminal act itself, he “[said] some word ... intended to and which did incite, encourage, assist, induce, or cause another person to actually commit the crime.” According to the majority, Enmund would be satisfied, through the above quoted jury instruction, if three weeks before the murder, Ruffin had told Hall that the victim should be kidnapped and killed. Imposition of the death penalty under these circumstances is precisely the kind of scenario which the Supreme Court condemned in Enmund.
Even more regrettably, the majority has inspected the state court record and focused on an instruction that covers premeditated murder as well as felony murder theories, and mysteriously concludes that the jury convicted on the premeditated murder theory. Why not conclude that the jury convicted on the easier and more probable theory of felony murder? *
Because Enmund is a sentencing case and does not determine who may or may not be found guilty of first degree murder, a jury’s verdict of guilty is not dispositive of Enmund’s concern of whether a defendant may be lawfully sentenced to death because he in fact killed, attempted to kill, or intended to kill. More significantly, in Cabana, the Court reiterated that the inquiry into whether Enmund bars a death sentence does not end with an examination of the jury instructions: “[r]ather, 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.” Cabana, 474 U.S. at 387, 106 S.Ct. at 697, 88 L.Ed.2d at 717 (footnote omitted). Thus, by focusing exclusively on the jury instructions to determine whether Enmund has been satisfied, the majority’s disposition of the Enmund issue manifests a grave misunderstanding of the Supreme Court’s directive in Cabana.
In Cabana, the Court revisited Enmund for the sole purpose of delineating the “appropriate course of action for a federal court faced with an Enmund claim when the state courts have failed to make any finding regarding the Enmund criteria.” Cabana, 474 U.S. at 390, 106 S.Ct. at 699, *152288 L.Ed.2d at 719. Although recognizing that federal and state courts are equally competent to make the factual determination of whether a defendant in fact killed, attempted to kill, or intended to kill, the Court concluded that the desirable alternative is to allow the state’s judicial system to make this determination in the first instance. Cabana, 474 U.S. at 390, 106 S.Ct. at 699, 88 L.Ed.2d at 719. In so holding, the Court reasoned:
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.... 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, 81 S.Ct. 735, 743, 5 L.Ed.2d 760 (1961).
Cabana, 474 U.S. at 390-91, 106 S.Ct. at 699, 88 L.Ed.2d at 719.
Notwithstanding the Court’s directive that the State judicial system be given the first opportunity to make the necessary Enmund findings, the majority ignores the clear dictates of Cabana by refusing to remand this case to the state courts to make the proper Enmund findings. While some would argue that the federal habeas court should make the Enmund findings since it has the record of the state proceedings, the short answer is: The Supreme Court has held to the contrary. The lesson of Cabana is that state courts must incorporate into their procedures for the handling of death penalty cases a method which requires decisionmakers to make the Enmund findings expressly.
Accordingly, I would remand this case to the state judicial system in order for it to make the appropriate Enmund findings.
In addition to the instruction on vicarious criminal liability, the jury was also informed that "[i]f the defendant, in killing the deceased, acted from a premeditated design to effect the death of the deceased, or some other human being, he should be found guilty of murder in the first degree.” In this regard, this case comes to us in much the same posture as Cabana where, as here, the jury was instructed on several theories of criminal liability. As the Supreme Court observed:
An instruction offered after the one [on accomplice liability] informed the jury that to find Bullock guilty of capital minder, 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, 322-23, 105 S.Ct. 1965, 1975, 85 L.Ed.2d 344 (1985), ‘Nothing 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 [infirm] instruction, which, though somewhat harder to follow, appears to be more comprehensive and more specifically tied to the facts presented to the jury.
Cabana, 474 U.S. at 383-84, n. 2, 106 S.Ct. at 695-96, n. 2, 88 L.Ed.2d at 714-15, n. 2 (emphasis added).