*1 Lee MILLER Eddie STATE of Arkansas 2d S.W. CR 79-80 Arkansas Court of Supreme Rehearing Opinion on Substituted delivered October *4 Ross,
Bill E. for appellant. Clark, Atty. Gen., Purvis, Steve by:Joseph H. Deputy Atty. Gen., appellee. for Appellant F. was convicted Stroud, Justice. John 3, robbery killing on November murder
capital Bolin, and sentenced Blytheville shopkeeper, W. F. Alleging numerous constitutional to death electrocution. reversal, appellant points as procedural irregularities error, affirm the conviction no we brings appeal. Finding the jury. and the sentence of I
POINT GRANT THE ERRED IN FAILURE TO COURT TO SUPPRESS MOTION APPELLANT’S THE AUTHORITY SEIZED UNDER EVIDENCE OF A SEARCH WARRANT.
Appellant probable there was not cause to contends and evidence the issuance of the search warrant justify The pursuant suppressed. it should have been seized to Police, Cox, Judge A. S. Blytheville Chief R. contacted of J. and during evening Harrison in of November 3 Jonesboro 346 testimony with affidavit and
presented judge tending his support the issuance of search warrant for home appellant. Appellant and of had arrested automobile been warrant, day pursuant validity an earlier that arrest challenged appellant. which was not When officers after the with a appellant’s shortly killing went house arrest, they warrant for his were unable to entrance. gain finally wife was next door and she admitted that Appellant’s house, keys in the she said her were locked appellant was but in the were up house. As officers unable to elicit response appellant, they open from forced the front door. attic, Appellant hiding but came down and was custody. taken Chief into of Police Cox stated his affidavit for a search warrant that the led him circumstances to believe appellant had the murder and weapon money concealed hiding immediately the attic where he had prior been to his robbery The affidavit recited the W. F arrest. murder of day, entry earlier that pur- Bolin the forced of the residence warrant, suant to the arrest the surrender of appellant from attic, making entry the attic without officer into the discovery shotgun plain sawed-off view Appellant argues house. the affidavit contains con- police clusions of the chief rather than upon facts which the judge could make an independent determination An reasonableness. affidavit for a warrant search must con- fact, tain allegations affirmativeness not mere affirmations of suspicion, judge may from which the independently decide for himself whether there probable cause for the search. State, 38, Ferguson (1970). v. Ark. S.W. 2d 458 249 383 judge merely accept must not question without the con- State, 84, clusions of the officer. Walton & Fuller v. Ark. 245 (1968). S.W. 2d 462 But the for affidavits search warrants 431 must interpreted be tested courts a commonsense Ventresca, 102, and realistic fashion. United States v. U.S. 85 Cary 741, (1965); State, S. Ct. L. Ed. 2d 684 Ark. (1976). S.W. 2d Both Chief of Police and Judge Cox Plarrison were en- titled rely validity on the arrest, of the warrant of as warrant was valid on its face and the attorney did challenge validity. its We also find Judge had Harrison sufficient information from the affidavit and *6 that there his which to base testimony upon sworn evidence would sought the cause to believe was reasonable Appellant urges automobile. house or appellant’s found Judge issued because illegally warrant was that search that than contained information other Harrison considered However, reading testimony. a the affidavit and sworn in- did other he receive transcript clearly although indicates search, nighttime a urgent need for concerning formation for issuance of search probable determination of cause his affidavit and the sworn only on the warrant was based testimony. the warrant should
Appellant also contends 13.2(c) hours. Rule nighttime have been issued provides Procedure search Rules of Criminal Arkansas p.m. a.m. and 8:00 executed 6:00 warrants shall be between when exceptions One of except exceptions. for stated imminent removal. danger objects are to be seized concerned, following 13.2(c) (ii). The officers were so Rule dispose of that his wife would appellant, the arrest of money they left of- weapon murder and hide stolen awaiting hours search at the home for several ficers likely have been would Inasmuch as the officers warrant. without the arrest the attic incident to justified searching 12.5, they Rule we think pursuant search warrant attic deferring restraint demonstrated commendable There was ample warrant until the search issued. search objects the search imminent of the evidence of removal It is nighttime search. Judge warrant Harrison to authorize that the officers should have suggest rather ridiculous to also a.m. so entrance the attic until 6:00 watch the continued to made. search daylight could be II POINT ERRED IN NOT EXCLUD- THE TRIAL COURT HAVE BEEN ALLEGED TO STATEMENTS ING AFTER FROM APPELLANT OBTAINED WITH EVIDENCE CONFRONTATION BY SEARCH AND AN UNLAWFUL OBTAINED SEIZURE.
Appellant bases argument solely on the “fruit of the poisonous U.S., tree” doctrine out in Wong set Sun U.S. 407, (1963), L. S. Ct. Ed. 2d 441 where evidence ob- tained aas result of earlier unlawful acts held to be *7 previous and, therefore, “tainted” illegality inadmissi- However, ble. have previously as we the search of upheld house, appellant’s argument this must fall. Since the tree was not “poisonous,” neither was the fruit. III
POINT THE COURT ERRED IN NOT THE SUSTAINING THE TO ARGUMENT OF THE OBJECTION DEPUTY PROSECUTING ATTORNEY IN THE CLOSING OF THE PENALTY STAGE OF THE APPELLANT’S TRIAL.
Appellant’s point for error due the following argu- is ment the Deputy Prosecuting Attorney of closing of penalty stage appellant’s of trial:
I don’t think you lay night, that can at sleep down you knowing that have man allowed this to live with the possibility already He escaping again. has escaped once. He is an escapist.
Ladies and gentlemen, I don’t mean to create fear you, you that, but if did do him sentence to life im- prisonment with having escaped already his once and plan institution, on holding him any I don’t care what is, kind of forty years institution institution for better, you are taking terrific risk.
Appellant’s did request counsel not the court to ad- the jury concerning monish these remarks. He did move them, mistrial based on but this motion was denied trial Appellant only court. contends that the logical inference that can be drawn from the statements is that the deputy prosecutor telling members of the their lives would danger they be unless sentenced to death. However, deputy prosecutor went to explain on that he interrupted explain that he was about to that the risk would society members not general, to the jury. members of the accepted The trial court explana- tion, and, noted, as denied appellant’s motion for mistrial.
349 per- in matter of the trial court reverse the action We will not determining supervising, controlling, its taining to the absence of counsel arguments of the propriety 77, S.W. State, Ark. v. 562 abuse. 263 gross manifest Rowland 2d S.W. State, Ark. Perry v. (1978); 2d 590 (1973). ad the court requested counsel appellant’s
Had
have been
would
refusal
question
jury,
monish
admonitory instruction
give
failure to
but
presented,
State,
v.
Petron
request.
of a
in the absence
error
prejudicial
State, 246 Ark.
Clark
(1972);
2d
945, 481 S.W.
Ark.
closing arguments,
(1969). Prior to
1151,
solely inflaming for the is mis- purpose jury. Appellant challenge The time taken on of these contentions. b.oth of the of conviction for “armed accuracy judgments technical 1971, dif- robbery” have been It is also would 1978. appellant pled would have imagine guilty ficult to weapon during if he not used a robbery” “armed had Further, fact that robbery. of the perpetration previously admitted on cross- hads convictions prejudice from the possible examination removed State’s during of them of the penalty phase later introduction trial. V
POINT THE TRIAL COURT ERRED IN DISMISSING CERTAIN VENIREMEN AS PROSPECTIVE OF BECAUSE THEIR ATTITUDE JURORS TOWARD CAPITAL PUNISHMENT. Appellant contends that several prospective jurors who had general objections to the death penalty were wrongly ex- cluded from violation of the rule laid down in Witherspoon Illinois, 510, U.S. 88 S. Ct. L. 20 Ed. (1968). 2d That provides, essence, rule that unless a prospective juror clearly states that he would automatically against imposition vote dealth penalty, regardless of trial, evidence adduced during the he cannot be excused from the for cause.
It is easy no task for the trial court to ascertain which jurors irrevocably are opposed to the death penalty merely which have religious or conscientious scruples op- position it. are magic There no words. It phras- is not the questions ing of used in answers area impor- that is tant; rather, it viewpoint basic juror each of on possible imposition of the penalty death that is critical. The trial court must ascertain that each jury member of the will open-minded at the outset of the trial and able to consider all by alternatives authorized law. After reviewing the rec- ord of the voir dire of prospective those jurors excused due to their opposition to the death penalty, we are satisfied that jurors these irrevocably were so opposed to capital punish- ment that the trial court was not wrong in excluding them for that reason. qualification” the “death that
Appellant next contends jury it in a which that results is unconstitutional juror of the Sixth violating thus prosecution, in favor of the is biased the United States Constitu- Amendments to and Fourteenth support made to this con- of evidence was proffer tion. As no tention, think the treatment of this same contention we Illinois, Witherspoon supra: v. answered appropriately conclude, of the We cannot either on basis simply notice, judicial a matter now us or as record before punish- jurors opposed capital that the exclusion of jury ment in an on the issue of unrepresentative results substantially guilt or increases the risk of conviction. a fair trial
Appellant also contends that he was denied many prospective jurors due to the who were exclusion of Appellant points jury black. out blacks on panel, 28 were excluded for He argues one reason or another. clearly systematically that this fact indicates that were blacks jury. excluded from the Ten were the State blacks struck in the peremptory challenges, exercise of its but is interest- ing to note that all peremptory exercised of his challenges potential jurors. to strike white The other blacks excluded were either challenged excused court or Eventually, cause. of nine and three whites blacks was seated heard the case. There evidence here that is no persons deliberately class of systematically excluded the jury panel. Although appellant severely from criticizes use of the peremptory challenges by prosecuting attorney, previously we have held that the mere that the fact state challenged all the the jury panel blacks on does not constitute showing rights Rogers his constitutional were violated. State, (1974). Ark. S.W. 2d The trial court has broad discretion the conduct of a trial. We find no the part error on of the trial court in supervision its selection and appellant’s rights no violation of constitutional make-up jury.
POINT VI *10 IT IS A VIOLATION OF APPELLANT’S RIGHTS LEAVE THE CONSTITUTIONAL TO ABSOLUTE THE DISCRETION IN PROSECUT-
352 FILE WHO DECIDE TO TO ATTORNEY
ING AND ON CHARGES MURDER CAPITAL DEATH THE TO WAIVE NOT OR WHETHER IS STAGE GUILT-INNOCENCE AFTER PENALTY CONCLUDED. discretion leaving absolute contends
Appellant charges is murder capital to file attorney prosecuting the Fourteenth clause of equal protection violation of We summari- Constitution. States to the United Amendment it, in v. Giles very similar or one argument, ly this rejected den. cert. (1977), 434 2d 413, S.W. State, 261 Ark. 479 549 ex- Court has Supreme States The United (1977). U.S. 894 We occasions. several on question this on position its pressed Hayes, statement, in Borkenkircher 434 following think 604, (1978), is 611 Ed. 2d 663, L. 364, 357, S. Ct. U.S. question: sufficiently clear on probable system, long prosecutor In so as has our an that the accused committed offense cause to believe statute, whether or not by defined the decision charge bring and what to file or before prosecute, entirely in his discretion. jury, generally rests grand constitutionally legislature’s Within the set limits offenses, ‘the conscious ex- chargeable valid definition of selectivity in enforcement is not itself ercise of some long so as ‘the selection violation’ constitutional federal upon unjustifiable deliberatély based was [not] race, arbitrary religion, or other standard such .as classification.’ VII
POINT THERE WAS AN UNCONSTITUTIONAL EXCLUSION OF THE VENIREMEN FROM JURY PANEL.
Appellant alleges the trial court erred in excusing several venirement from service at the voir dire. outset of reviewing expressed by After 24 persons reasons ex- cused, find we no the trial There abuse discretion court. large jurors was no deliberate exclusion of a of eligible class State, as in Hall v. was true Ark. 2d S.W. (1976), where all farmers were excused. Here the court acted reasonably persons only “when excuse the state of his
353 absence; family reasonably requires health his or of his reason, when, those of the his own interests or or will, materially injured the Court public opinion 1979). (Supp. Ark. Stat. Ann. by his attendance.” § 39-107 VIII POINT ARE STATUTES CAPITAL MURDER ARKANSAS OF VIOLATIVE AS UNCONSTITUTIONAL EIGHTH AND UNDER RIGHTS APPELLANT’S THE TO AMENDMENTS FOURTEENTH STATES THE OF UNITED CONSTITUTION 2, 9, ARTICLE SEC. OF THE AND CONSTITU- TION OF ARKANSAS. up- rejected argument
We have this same repeatedly murder statutes. constitutionality capital of our held 418, (1979); Pickens State, 2d Swindler v. Ark. S.W. 267 91 592 State, 756, (1977), 212 den. v. S.W. 2d cert. 261 Ark. 551 435 State, S.W. 2d (1978); 261 Ark. U.S. Collins 548 909 (1977). we (1977), Accordingly, den. cert. U.S. 878 appellant’s find no merit to contentions. IX
POINT PROPER LAW PROCEDURE WAS NOT AND THE STAGE OF FOLLOWED IN PENALTY TRIAL. APPELLANT’S
Appellant penalty phase that the of his trial contends Ark. Ann. 41- properly pursuant Stat. conducted § .was — 1977). (Repl. provides The first of these statutes for a trial with murder. persons charged capital bifurcated murder, If guilty capital the defendant is found the same jury again aggravating sits to hear additional evidence of mitigating determining sentence. circumstances before Ark. Ann. possible aggravat- Stat. sets out seven § 41-1303 ing circumstances be considered § possible mitigating enumerates six circumstances. 41-1304 properly provided were a form to indicate their findings in regard possible aggravating to each of the circum- stances and a separate mitigating form of the circumstances. They statutory found four of the seven cir- applicable cumstances this case: had, doubt, I. The defendant beyond a reasonable previously felony committed another an element which the use person or threat of violence to another creating physical substantial risk of death or serious injury another person. *12 did, doubt,
II. beyond The defendant in a reasonable felony the capital commission of the murder knowingly create risk death great of to a other than the person victim. did, doubt,
III. The defendant beyond reasonable capital felony commit for purpose the murder the of an avoiding preventing effecting escape or arrest or custody. from did,
IV. doubt, beyond The defendant a reasonable capital felony commit the murder for pecuniary gain. The aggravating and mitigating circumstances to be by considered the jury applicable in all are cases set out the statute, and are therefore not worded or fit tailored to the particular of the just facts case tried. As the statute does not otherwise, indicate the judges circuit of the state have been submitting jury in capital to the murder cases all of the seven enumerated aggravating circumstances all six of the circumstances, enumerated mitigating regardless the in- of applicability of some of them. Ark. Stat. Ann. § 41-1303 (Repl. 1977). practice The perhaps also bolstered our Instructions, Jury Committee on Criminal because none of the or aggravating mitigating circumstances are bracketed instruction, the model they might to indicate We be omitted. it a practice, think better and less confusing jury, to the for the circuit judge to omit from any submission aggravating or mitigating are completely circumstances that unsupported evidence, any and we take this opportunity to direct the cir- judges cuit of to Arkansas hereafter allow this alternate procedure. If there is any evidence the aggravating of or circumstances, mitigating however the slight, matter should course, the jury. submitted to may Of counsel object to the determination the may of trial court the they object same as any other form of verdict. case,
In there jury this were room average twelve citizens, law, say not trained were required who aggravating described rigidly seven not each of whether or questions, answered jurors existed. circumstances these the reasons One of they could. unanimously, as best insight court an give was to enacted were statutes cir- compare that we can jury so of the process thought effort our the death sentence involving of cases cumstances application arbitrary and unconstitutional avoid separate findings as jury’s consider We do not sentence. proof degree verdicts, require- same we do not little cir- mitigating aggravating that an to sustain a conviction sustain require to we would exists as cumstance crime. separate was a if that circumstance support whether the facts judgment It is a matter of cir- mitigating findings cumstances, judgment our but we will not substitute if there is a *13 that heard the evidence judgment jury of the the the facts to application of reasonable understandable whether, the The is on statutory circumstances. basic issue- evidence, honestly made sincerely and have jurors the could they question. the If their answer to finding the as understood a question wholly arbitrary, problem had a different been arbitrary. were us. But here their answers not would confront presented us a of all the evidence to We have before record capriciously jury help jury the us decide whether this acted to imposing put the death sentence. We can ourselves jurors’ position they by and understand what meant answer- inter- ing interrogatories they might the as did. That we have preted differently require an not us to set interrogatory does deliberately aside a death sentence that was conscien- tiously upon by advantage had the of agreed persons who hearing testimony given. as was cir- aggravating the first Appellant’s objection to Point appellant’s was covered by jury found cumstance find- therefore, three we, only the other here cover IV and appellant finding that testimony The relevant to ings. than person of death to a other knowingly great created a risk Hudson, Hudson. Mr. testimony victim was the of Jim deceased, testified that next that of the whose to business “No, say voice neighbor’s after several shots his hearing shots, prem- victim’s he entered the by more no!” followed He testified appellant. face with and came face to ises said, appellant get here,” “You but instead he backed out of door and hiding stood outside and shaking until he saw appellant exit gun up with a hand a alley. his run The jury reasonably could appellant have found that knowingly great created a risk of death to Mr. Hudson when he himget tried to inside the Having just store. murdered one man, it is not difficult to that appellant believe would have just easily dispatched as of Mr. Hudson to leaving avoid identify to him. witness question whether presented
The evidence on the of or of purpose avoiding not killed the deceased appellant relevant primarily portions arrest consists of certain his they It jury’s is from the confession. obvious possible him as a appellant believed shot Bolin to remove They interpret did circumstance witness. only capital felony by to murder committed applicáble to be — escape custody while is attempting defendant he from interpretation say Appellant is we cannot erroneous. immediately prior shooting, thoughts stated that be- ran mind. ing through identified the deceased man his hard Although passage remainder somewhat follow, it is inescapable was concerned about being Appellant identified the deceased. stated his con- for an and that pipe fession the deceased reached iron him, why he the scene un- investigation shot but at any object. could pipe covered no iron similar logical take into also consideration lack other killing, for the such Once revenge reason as or accident. think again, we there was sufficient evidence for the *14 beyond find killed the appellant reasonable doubt hopefully deceased to eliminate and thus avoid witness robbery. arrest for the
Appellant also contends that the jury’s finding that appellant committed the murder pecuniary for gain was un- supported by the evidence. This contention merits little com- ment. Suffice it say to that there was more than sufficient evidence to support the jury’s finding that one the of reasons appellant killed the deceased was to rob the store’s cash register. We have previously held that this aggravating cir- cumstance is hire, not limited to a killing but also clear- ly applicable to a murder during robbery. committed Giles State, 261 Ark. (1977). S.W. 2d cir- mitigating statutory the none of found jury and, the although appellant to applicable to be cumstances mitigating any other write jury could indicated form contends Appellant none to exist. circumstances, they found cir- statutory finding two of in not erred applicable: cumstances while committed felony murder was capital
I. The dis- mental or emotional extreme under defendant was turbance. while was committed felony murder capital
II. The wrongfulness appreciate the defendant capacity of the re- his conduct or to conform his conduct of mental as a result of impaired the law was quirements of defect, intoxication, drug abuse. or disease or psy- report on the this contention Appellant bases Hospital him at the Arkansas State evaluated chologist who which stated: psychotic but is
... I that Mr. Miller is conclude I his emotional problems. with emotional see serious his way diminishing competency problems no trial. stand he is testing
. . . My clinical interview indicates in- range functioning at least borderline Moreover, dysfunction. organic he is without telligence. significant Miller that Mr. has There are indications no indication that these but problems, emotional my trial. In competency with to stand way interfere his diagnosis are with a test results consistent opinion, these personality. an anti-social capital with person charged It that a strange is not there problem, have a emotional but murder would serious extrememental appellant under an was no evidence that was time of murder. There at the emotional disturbance influence under the appellant no evidence that was was also murder, report and the drugs at the time of the of alcohol or capable appreciating clearly indicates that to' conforming that conduct of his conduct wrongfulness give free to of the law. The requirements *15 they felt credibility persuasiveness and report degree the and to observe appropriate, they opportunity had testimony and trial and hear his throughout finding taped jury’s We find no error confession. were statutory mitigating circumstances none of appellant. applicable to
Appellant also contends that the trial court erred in re- quiring jury to list in writing any additional mitigating it might circumstances find. This wholly contention is without merit. The provision on the form the listing additional mitigating circumstances was included as an add- ed safeguard to juries defendánts so not would limited in their consideration of might circumstances that call for leniency sentencing. The latitude of a to list other mitigating circumstances writing on the ais benefit to form defendant certainly prejudicial. not We find no error in the application of the law inor the procedures followed dur- ing penalty stage of appellant’s trial. Finally, as required by Ark. Stat. Ann. (Repl. § 43-2725
1977) 11(f) and Rule of the Rules of the Arkansas Supreme Court, we have reviewed the entire record for other reversible and, none, errors finding affirm the verdict and sentence of the jury.
Judgment affirmed.
Fogleman, C.J., and Purtle JJ., dissent. Mays, Justice, A. dissenting. Upon Chief Fogleman, John case, further extensive review record in this I must my agree with Brother Purtle that the evidence was not suf- ficient support finding knowingly Miller created a great victim, risk death to a person other than the Bolin. A not could have found this circumstance exist without gross speculation. Giving the evidence this circumstance on probative its when strongest light force viewed in the most state, favorable to could be classified as more than a scintilla. In facts related in Purtle’s .addition Justice dissent, only jury might evidence the possibly have con- support that, sidered testimony was Hudson’s by Miller, when he first holding who was" confronted cash it like it a' carrying heavy box both hands ob- .and commanded, ject, get Miller madé a move “You
58-A3 in a the the move for demonstrated Hudson here.” a saw Hudson the record. by disclosed neyer manner not. gone had the side door out Miller had come until weapon Hudson away from moving alley, an toward the street down times; the holding when Miller Perhaps the move at all made an Hudson as by indication interpreted justifiably was box- Still,.the weapon. a concealed reaching for was that Miller are circumstance particular of this requirements a knowingly created the accused that by showing a met other, instead, victim; the than by person a death great fear created,.a to a death risk of greát knowingly have must Miller the is not i.e., There Bolin, Hudson. than person other the side.door came out when Miller that indication slightest ever, only toward, The Hudson. saw, even or looked he that Hudson saw the gun. thát indicates in the case evidence state- incriminating In his empty. his belt put Miller evidence, that Miller said ment,- which was introduced at Bolin before fired weapon were cartridges only four drawn could be Hudson, if an inference But even appeared. loaded, evidence there was no that weapon was that Miller. However by made ever it Hudson was use on effort to it, this evidence jury- viewed favorably state toward Miller, knowing- finding a support not substantial death to Hudson. ly a risk great created I accept cannot approach majority of the its sub- opinion stituted we require somehow should not same test for evidence substantial to sustain a finding of circumstance, an aggravating on which the infliction may citizens, death penalty hinge, just 12 average because law, untrained perhaps by confused submission basis, an aggravating circumstance for which there was no they did the “deliberately best could but still and conscien- tiously” a agreed upon wrong answer making sincere it.” they honest “as The position by understood taken majority to treat the jury’s finding of the existence of aggravating circumstance something as other than a “separate verdict”, may supported little which tests, substantial, according evidence less than to the usual simply satisfy requirements constitutionally does not for a imposed penalty. death test for evidence substantial is not met evidence
358-B to no which amounts suspicion or merely creates which inconsis- equal support gives which than a or more scintilla and character inferences; it of sufficient force must be tent certainty precision, and material will, with reasonable another,; in- it must force or conclusion, way one or compela conjecture. beyond suspicion pass the mind to duce Jones *17 “Any” evi- (1980). 119, 2d State, S.W. v. Ark. 748 598 269 valid, evidence; evidence is not substantial dence is substantial a morethan create it must do evidence and persuasive and legal Pickens-Bond Construc- of the fact to established. suspicion be 21. Case, 323, 2d 266 Ark. S.W. tion Co. v. 584 for sub- not used test majority I has submit evidence, which precise How certain and evidence. stantial conclusion, merely permits a but compel not does whether, on say that the “issue is appellate court honestly have sincerely and have jurors evidence the could or to test they question” understood the finding made the as in jurors’ by putting its members for evidence substantial what the it?) understanding and (as understood position they it did? If the as interrogatory answering meant substantial, it should finds the evidence majority to the ex- the test without resort how meets demonstrate tenuatory given. explanations States by the United expressed concern basic 238, S. Ct. Georgia, in Furman v. 408 U.S. Court
Supreme 92 being 2726, (1972) centered on defendants L. Ed. 2d 33 346 v. arbitrarily. Collins capriciously to death condemned 878, 106, 195, 2d cert. den. U.S. State, S.W. 261 Ark. 434 548 977, 158, U.S. S. S, 231, 2d reh. den. Ct. L. Ed. 434 98 54 98 also, (1977). Gregg Georgia, v. 540, L. 2d See Ed. Ct. 471 54 (1976); 2909, L. Ed. 2d 153, Ct. 428 U.S. S. 859 49 96 Proffit 2960, Ed. 2d 242, L. Florida, S. Ct. 428 U.S. v. 913 49 96 262, L. Ed. Texas, 2950, 428 S. Ct. (1976); Jurek v. U.S. 49 96 280, Carolina, S. 428 U.S. (1976); v. North 2d Woodson 96 325, Louisiana, 428 U.S. 944; 2978, L. Ed. 2d Ct. Roberts (1976). L. Ed. S. Ct. judge a trial should in Collins that clearly recognized We felony capital for a parole without imprisonment life impose evidence to murder, that there was not sufficient “if he found 358-C circumstance jury’s finding aggravating on support 41-4711,1 there not enumerated and that sufficient § aggravating cir- support finding evidence to its sufficient existed or there were sufficient cumstances cir- outweigh circumstances to mitigating cumstances, evidence support but there was sufficient Collins, We guilt.” [Emphasis also said mine.] a power reference to this court’s to reduce sentence death cases, penalty difference in a reviewing is vast “[t]here for (including resulting sentence error error from insufficient evidentiary and review- support) sentencing procedure ing a sentence resulting proper legal sentencing from where procedure sufficiency of evidence is not a basis Collins, review.” In we emphasized importance of the circumstances, jury’s findings aggravated on imposing penalty pass death which will constitutional examination in avoiding arbitrary, capricious or imposition freakish of this penalty. extreme We said:
*** returned, guilty If a jury verdict is the same sentencing phase may of a trial bifurcated then hear testimony tending to show one of specifically more enumerated groups circumstances; of aggravating the but penalty death imposed cannot be jury unless the un- finds, animously beyond doubt, reasonable one or more aggravating exist in (specifying circumstance[s] writing does) which of them finds that aggravating circumstances outweigh any mitigating circumstances ** found to exist.
In pointing out that there meaningful was a appellate review imposition of the penalty, of a death we stated:
There ais meaningful appellate review this court the appropriateness of of the death penalty in a par- case, ticular considering both the. punishment any points court, errors on raised the trial including the suf- ficiency the evidence support any part the verdict. of of appellate This (1) review includes: determination controlling pre 1 This was the statute at the Collins trial. The time of the corresponding 1977). sent (Repl. statute is Ark. Stat. Ann. § 41-1303 358-D the the passion, prejudice
whether sentence was of result arbitrary factor; (2) support the evidence any whether or circumstances; (3) statutory jury’s finding any aggravating supports jury’s findings on Whether the evidence outweigh mitigating whether circumstances question ones; (4) excessive. whether the sentence is sentence, review, reduce the this court can appellate On trial, -its-discretion, if the new sentence grant or only, the sentence or affecting or there-is error excessive evidentiary support for where there is insufficient -*** [Emphasis mine.] sentence. specific requirement We recognized Collins that'there is no sentences, scope that “the found compare this court but on would permissible appeal review of sentence prior precedent we consult cases as necessarily require that sentencing there was error determining whether for our any support whether the evidence procedure, sufficient any findings jury, whether made arbitrary factor prejudice result or or other passion of the either there had been an discretion of whether abuse [Emphasis imposing the trial sentence.” judge or Collins, In we concluded: mine.] certainly and- review sentencing procedures These will risk- the death sentence leave no substantial wantonly arbitrarily, capriciously, imposed randomly, evenhanded, rational freakishly, promote and tend to penalty.*** and consistent of the death imposition *19 conclusion, denied On of review was the basis 878, 231, at S. Ct. Supreme Court U.S. United States 434 98 effectively sawed off majority L. Ed. 2d The has now 54 158. and has stood legs upon which conclusion one of constitutionality penalty our death statute’s rendered suspect. scope appellate the' of review outlined importance of 336, State, v. Ark. Neal 261 given emphasis Collins was “it will at did out that only point 2d we S.W. Not
548 135.2 dea, 231, 158, 878, 2d den. S. Ct. L. Ed. reh. U.S. 434 2 Cert. 54 98 .434 495, (1977). 961; 2d S. L. Ed. U.S. Ct.
358-E if to see there is súfficient easy to be least as review record these, findings on jury’s par- a for evidentiary support find- general jury’s when a as it is circumstances ticularized that there out we pointed and also ing guilt questioned,” is of from the report a requiring a mechanism necessity for nowas capital of all of records an accumulation and judge trial w;as when the meaningful a was that review The reason cases. a defen- a in which case to “review court undertook appellate to deter- other decisions light die in the of dant is sentenced to taking and its great was too punishment mine whether and [aggravating ‘guarantee that to function a case will reach similar one present reasons mitigating] in another circumstances that reached under similar result to mine.] [Emphasis case.’” ask, if the appellate meaningful
I how an review to the fact that give any significance court not appellate does for which there was jury a found an circumstance evidentiary something no or even less than substan- support, evidence, it. Is the thrown tial as we have defined door not .open arbitrary capricious imposition of the death a penalty? majority Could the have swallowed verdict had, an jury deliberately conscientiously, given which a tyas question the murder affirmative answer to the whether hindering of the law- purpose disrupting committed for or of governmental political ful exercise a function? say arbitrary
We means “decisive but unreasoned” capricious guided by steady and that defined judg- as “not City Habrle, purpose.” ment-or North Little Ark. Rock S.W. arbitrary 2d What could be more 751. capricious finding than an aggravating circumstance that did not exist? If do require degree we not same proof sus- tain a jury verdict on an as re- aggravating circumstance we quire a why then do wé In what guilty, not? ¿verdict kind position put must we ourselves accept to. we supported by substantial evidence because understand others, who, I, as Perhaps what meant? there do are. upheld jury’s not' understand it. We never have before interrogatory no substantial answer to when there was it, evidence to answered as support just because “as it un- they question it. A answer jury’s understood' *20 358-F
derstood it” is certainly unreasoned,” “decisive but if un- its derstanding was wrong.
I am well aware of the fact that appellant object did not to the given instruction on aggravating circumstances nor to the verdict form including circumstance; however, this this does not bar our sufficiency review of the of evidence when question has been raised am appeal. on I also aware of the potential argument that an erroneous as to one aggravating circumstance should not overturn the verdict because the jury found four aggravating circumstances mitigating no circumstance.
The flaw in this is that it argument jury, is for the alone, impose a death sentence in- first stance, statutory guidelines obedience to for the exercise of if, if, It impose sentence, its discretion. shall un- only but animously finds that justify aggravating circumstances a beyond death sentence a reasonable Ark. doubt. Stat. Ann. § 1977). (Repl. Even with questioned 41-1302 circumstance eliminated, agree I that justified the evidence the requisite findings of the existence of aggravating circumstances the three aggravating circumstances supported by the evidence, outweigh, beyond would doubt, a reasonable mitigating which did circumstances not exist. But there was reason for including some the third statutory requisite aggravating justify circumstances must be found beyond sentence of death a reasonable can doubt. How court know weight jury gave how much a non-existent cir- deciding that the. penalty justified? cumstance death entirely That decision rested with the jury. up It is not to this say court a jury because couldhave reachedits conclusion three, four, on the basis -of rather than cir- it necessarily cumstances that did. taking state’s of a human life is a serious matter.
This reason that we have the point come to where we impose safeguards only elaborate make sure that it is done stricly types limited of situations. The mere fact that an in. say court can read a record and that it thinks appellate penalty death justified particular case is ade- quate safeguard, any more than the exercise of standardless
358-G the conscience the primarily which is jury, a by discretion a against only protection afford can courts community. that this way is no There action. capricious artibrary or jury’s can cases penalty death of other review appellate court on another whether determining case classify properly imposed. properly was penalty death I respectful
I a Since compelled register am dissent. I it procedure, find in the would correct sentencing error life without punishment imprisonment the reducing retrial, a in which the state should elect to seek parole, unless event, the the judgment reverse and remand case I would a new trial. only from Justice, dissenting. I dissent I. Purtle, John IX in opinion which covers Point portion of
that cir- aggravating covers the appeal. point This appellant’s that one agree aggravating I circumstances cumstances. However, proper. four found were I do not jury as cir- supports finding aggravating that the evidence agree two three. cumstances two
I circumstances number will first discuss yes to exist. The answered which found following: did, doubt, beyond
The defendant in the reasonable capital felony knowingly murder commission of than great person create a of death to a other risk victim.
This that the upon theory was based witness, great of death to the Hudson. created risk Jim Jim Hudson that he heard the next door and went testified shots investigate. over He stated: fact, door,
... In I had the got pushed open door my face was a and he had a right guy then black carrying in his hand. Both were it just metal hands box He was like it carrying just in front of him like this. heavy something but way box or he was Yes, it. am indicating I carrying fingers his were 358-H object encircling
underneath the and his the top. thumbs . 1 money ... I . He recognized being as his box station, away police turned well he from had or he had a hand. It was gun gun his more down to his He glancing side. from side to side as he went alley. say toward the I would half approximately way alley, that he came of in the he between door out *22 front, then the gun apparently stuck his or in belt clothing. up his And then he run. And he turned the . alley. . . only
This the possible is evidence upon which the jury could have found the appellant created a great risk of death to a person victim, other than the and prevents it me agree- from ing that this a proper was finding aggravating of an cir- cumstance. When the witness both hands were appellant, encountered the
holding box front of him. The witness and, backed out of the when next building; he saw the appellant, he leaving was the scene of the crime. When he saw the appellant scene, the leaving the gun his hand was side, down his it then was placed of inside front his belt inor clothing. his The ran appellant away.
At no time was gun aimed at the witness nor were any shots fired which could conceivably have struck this any Therefore, witness or person. other I cannot simply see that there enough support is evidence to this of an aggravating circumstance.
The second finding of aggravating circumstance which I disagree with was: did,
The defendant beyond doubt, commit reasonable the.capital felony murder for the purpose avoiding or preventing an effecting arrest or an escape custody. from By no imagination stretch of can I believe victim killed was for purpose than to other obtain his money. majority concludes that the appellant must have had thoughts running through mind his that he should kill keep However, victim to being from identified. aggravating circumstance in this case found that the killing ir\On
cr> an arrest or preventing avoiding or purpose not been Certainly, he had custody.- from escape an effecting It escape. is attempting have been custody and could not thought that the presume logical certainly more mind in his identified, thought and no never be he would my opinion an arrest. It is preventing situation, a person where to cover is intended circumstance escape trying to arrest or prevent attempting physically custody. from these two findings
In view of erroneous to life circumstances, sentence I would reduce mitigating "giving the trial court parole return without without in the life either concur option to prosecution appellant. retry sentence parole J., joins me Mays, in this state that authorized to I am dissent. *23 CO.
NEW HAMPSHIRE INSURANCE QUILANTAN v. Sheila 2d 601 S.W. 80-23 Arkansas Court of Supreme delivered Opinion June