Lead Opinion
| íAppellant, Terrick Terrell Nooner, moves this court to recall the mandate that this court issued on direct appeal affirming his conviction for capital murder and his sentence of death by lethal injection. Nooner v. State,
I. Facts and Procedural History
The procedural history of Nooner’s case spans over a twenty-year period and encompasses numerous decisions on direct and collateral review from this court and the federal courts on multiple issues. We recite the procedural history here as it relates specifically to the issues of mitigating evidence raised in the instant motion, and as it relates generally to our later discussion of what Nooner terms an equitable claim to recall the mandate based on the interests of justice.
A. Trial
Nooner was tried by a jury for capital murder committed during the course of an aggravated robbery and theft of property at a laundromat in Little Rock during the early morning hours of March 16, 1993. Evidence at trial showed that Scot Sto-baugh was found, with the contents of his pockets emptied, lying face down in a pool of blood. He had been shot seven times at close range, twice in the arm and five times in the back. During the guilt phase of the trial, Nooner’s stepfather, Terry Hendricks, testified that Nooner had spent the night at home with him on the night of the murder. Despite this alibi testimony from Hendricks, the jury found Nooner guilty.
During the penalty phase, Nooner called Hendricks as his only witness. Hendricks testified that Nooner was twenty-two years old at the time of the murder and had been removed from home when he was fourteen as a result of child-abuse charges brought against |SNooner’s mother. He stated that Nooner was placed in various foster homes and was eventually sent to Rivendell psychiatric clinic for several months. Hendricks stated that Nooner had a tenth-grade education, began abusing alcohol when he left home, and had a two-year-old son. Hendricks explained that he was just beginning to redevelop a relationship with Nooner since his removal from the home. He stated that he and his wife provided approximately eighty percent of the support for Nooner’s child, but that Nooner “was crazy about his son.” In sum, Hendricks testified that Nooner had a troubled childhood, that he abused alcohol, and that he had recently become a father. Despite this testimony, the jury unanimously found that, while two aggravating circumstances existed beyond a reasonable doubt, there was no evidence of any mitigating circumstances. The jury unanimously found further that the aggravating circumstances justified beyond a reasonable doubt a sentence of death.
B. ■ Subsequent Procedural History
This court affirmed Nooner’s conviction and death sentence on direct appeal. Nooner,
Nooner then filed a petition for postcon-viction relief pursuant to Rule 37 wherein he asserted fundamental error in his trial as well as ineffective assistance of counsel for, among other things, failure to pursue a mental evaluation that would have produced mitigating evidence for the penalty phase of his trial. This court affirmed the circuit court’s denial of postconviction relief. Nooner v. State,
Nooner filed a federal habeas petition challenging, among other things, the effectiveness of his trial counsel for failing to seek a mental evaluation that would have produced evidence of mitigating circumstances. On appeal, the Eighth Circuit' Court of Appeals affirmed the district court’s denial of the petition, determining that the record supported trial counsels’ judgment not to pursue psychiatric testing for purposes of mitigation and that this court’s conclusion that trial counsels’ judgment did not render counsel ineffective was not an unreasonable application of Strickland v. Washington,
Nooner filed a subsequent petition for writ of habeas corpus, seeking an order permitting him to undergo a complete mental-health evaluation. The Eighth Circuit Court of Appeals granted a certificate of appealability and reversed and remanded the district court’s determination that Nooner’s petition was a second, or successive, petition under 28 U.S.C. § 2244(b). The Eighth Circuit found that the bar on a second, or subsequent, habeas petition did not apply to a petition raising claims of incompetency based on Ford v. Wainwright,
Nooner later sought and received permission to file a second federal-habeas petition, wherein he alleged for the first time his actual innocence, among other grounds for relief. His claim of innocence was based, in part, on (1) the recantation of trial testimony from one witness; (2) the recantation of statements that his accomplice, who did not testify at trial, made to police at the time of the murder; and (3) expert evidence measuring an individual’s height captured on crime-scene-surveillance video. The Eighth Circuit Court of Appeals affirmed the federal district court’s denial of Nooner’s second habeas petition, rejecting the theory that the expert evidence was new evidence and emphasizing the internal inconsistencies in both recantations as well as the general skepticism with which courts view recantations made long after the fact. Nooner v. Hobbs,
Nooner filed the instant motion to recall his direct-appeal mandate on December 13, 2012, just a few weeks after the Eighth Circuit Court of Appeals had affirmed the denial of his second habeas petition. While the instant motion was pending in this court, the Eighth Circuit Court of Appeals entered a written order on May 28, 2013, granting the State’s motion to dissolve the stay of execution that had been entered on September 14, 2007, in Nooner v. Norris, No. 5:08-cv-00003-JLH (8th Cir. May 28, 2013) ECF No. 120.
Ifill. Motion to Recall Direct-Appeal Mandate
In the present motion, Nooner contends that both the Eighth Amendment and this court’s precedent independently require recall of the mandate that this court issued in 1995 in Nooner’s direct appeal. Nooner asserts that there are two instances of a breakdown in the appellate process that he contends would justify recalling the mandate. First, based on Williams v. State,
This court agreed to take the motion as a case, and the parties have now filed briefs for our consideration.
|7A. Standard for Reviewing Motions to Recall Mandate
Before addressing the merits of Noon-er’s arguments in support of his motion to recall the direct-appeal mandate, we first note Nooner’s initial contention that, despite the use of mandatory language he describes as “restrictive dicta” in some of this court’s earlier cases, he need not satisfy the three-part test first announced in Robbins v. State,
We acknowledge, as Nooner points out, that our cases have been inconsistent as to whether all three factors first announced in Robbins must be satisfied in every case; but, we agree with the State that our decision in Robbins is patently clear that recall of our mandate is an extremely narrow remedy. Indeed, we stated in Robbins that recall of our mandate is to be granted only in extraordinary circumstances as a last resort to “avoid a miscarriage of justice” or “to protect the integrity of the judicial process.” See Robbins,
| sRegardless of any inconsistencies in our decisions concerning the mandatory satisfaction of the three Robbins factors, what has remained consistent in these cases has been a discussion of the three Robbins factors and this court’s overarching concern that we will reopen a case only to address an “error in the appellate process,” meaning an error that this court made or overlooked while reviewing a case in which the death sentence was imposed. See, e.g., Engram v. State,
As to Nooner’s claim that he need only show a defect or breakdown in the appellate process in order to warrant recall of his direct-appeal mandate, we apply the definition of “error in the appellate process,” as that term was first used in Engram, which is “an error alleged to have been made by this court during the course of its appellate review” of a death-penalty case, and we emphasize that such error is to be distinguished from an error that “should have been [raised] to the trial court” and could not be “considered as falling within one of the so-called Wicks [v. State,
The status of the three Robbins factors thus remains the same as it did prior to the present case — the three Robbins factors are relevant factors for this court to consider when presented with a motion to recall a mandate in a death-penalty case, although strict satisfaction of all three factors is not required. Strict satisfaction is not required because this court has the inherent authority to recall its mandate in extraordinary circumstances. See Robbins,
B. Failure to Consider Evidence of Mitigating Circumstances
Turning now to the merits of the motion to recall the mandate, we consider Noon-er’s first point in support of his motion. Nooner contends that because the jury checked option D of Form 2 (Form 2 D), which is the jury’s special-verdict form for mitigating circumstances, stating that “[tjhere was no evidence of any mitigating circumstance,” the jury impermissibly failed to consider or give meaningful effect to the relevant mitigating evidence he had presented. Nooner alleges that, based on the jury’s completion of Form 2 D, fundamental error occurred in his trial that this court failed to discover in its independent review on direct appeal. Nooner alleges further that this error is in a narrow class of manifest, fundamental defects in a death-sentencing proceeding that may be raised at any time, including on a motion to recall the mandate. In support of the foregoing argument, Nooner relies on this court’s decisions in Williams,
The State first responds that Nooner fails to cite any authority requiring this court to have raised this issue for him when it reviewed his direct appeal in 1995. In the absence of such authority, the State points out that Nooner relies on this court’s precedent from 2011 |nin Williams to establish a defect in his 1995 direct appeal. According to the State, Nooner erroneously reads Williams as holding that, in 2011, long after Nooner’s direct appeal in 1995, this court had a duty to sua sponte raise and consider an issue concerning his death sentence that was not error under then existing law. The State thus argues that Nooner erroneously reads Williams as having transformed the once extraordinary procedure for recalling this court’s mandate into a substitute for review of sentencing error in capital cases that can be raised at any time without complying with the time limits and procedural requirements for direct or belated appeals. The State asserts that this turns the principle of finality attached to appellate decisions on its head. To the extent that Williams holds that sentencing errors in capital cases can be raised at any time, the State asserts that Williams renders the extraordinary remedy of recalling the mandate less than ordinary and requests that we therefore overrule Williams.
A close review of Williams is essential to resolution of this case. In Williams, this court was presented with a motion to recall a direct-appeal mandate that was based on two grounds: ineffective assistance of direct-appeal counsel and mental retardation. This court granted the motion and reversed the death sentence and remanded “for new sentencing based not on the specific arguments of Williams, but because there was indeed a breakdown in the appellate process in this death-penalty case.” Williams,
In reviewing Nooner’s argument that Williams controls his case and requires recall of Nooner’s direct-appeal mandate, we realize that our decision in Williams was made in error. In recognizing our error, we are guided by the words of this court in Whittington v. Flint,
A rule of decision once deliberately adopted and declared ought not to be disturbed “by the same court, except for very cogent reasons and upon a clear manifestation of error.” But there are cases which “ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.”
Id. at 513-14 (quoting 1 Kent’s Comm., 476-11).
We are therefore of the opinion that Williams,
Our error in Williams was three-fold. First, we did not acknowledge that, according to the law as it existed when we decided Williams’s direct appeal in 1995, there was no error in the way the jury had completed the verdict form on mitigating circumstances at Williams’s trial. See, e.g., Hill v. State,
Because these errors in Williams result in a decision that stands for the proposition that this court will, on a collateral challenge to a judgment of conviction and sentence that has been affirmed and become final, apply our precedent retrospectively without analysis to find error in a previous decision that was consistent with then existing law, we have no choice but to overrule Williams,
Because we have overruled Williams, the question now is whether Nooner can otherwise demonstrate the error he alleges occurred in his trial-that the jury’s finding that “[tjhere was no evidence of any mitigating circumstance” indicates that the jury violated the Eighth Amendment and disregarded the mitigating testimony he had presented of his troubled childhood, alcohol abuse, his youth at the time of the murder, and his family ties and responsibilities. A review of our cases addressing the jury’s consideration of mitigating evidence in death cases leads us to conclude that Nooner cannot demonstrate the error he alleges.
|1fiNooner’s jury was instructed in accordance with Arkansas Model Jury Instruction-Criminal 1509, the same instructions and verdict forms used in Williams’s trial. As previously noted then, Hill,
We do not interpret the jury’s action to mean that they did not consider the evidence of mitigation that was offered. Rather we find the jury determined that the appellant’s youth was not a mitigating factor, as they were entitled to do, and so indicated that no mitigating circumstances were found. No error was committed.
Id. at 396,
Hill,
The State argues that even though Appellant could have changed his life in prison, the jury still could have concluded that this change was not a mitigating factor in his crime. We agree.
This court has previously held that “[a] jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance.” Bowen [v. State,322 Ark. 483 ,] at 497, 911 S.W.2d [555,] at 561 [ (1995) ] (citing Duncan v. State,291 Ark. 521 ,726 S.W.2d 653 (1987), and Hill v. State,289 Ark. 387 ,713 S.W.2d 233 (1986), cert. denied,479 U.S. 1101 [107 S.Ct. 1331 ,94 L.Ed.2d 182 ], and cert. denied,484 U.S. 873 [108 S.Ct. 208 ,98 L.Ed.2d 159 ] (1987)). This court held further that the jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it the jurors believe to be true. Id. (citing Davasher v. State,308 Ark. 154 ,823 S.W.2d 863 , cert. denied,504 U.S. 976 [112 S.Ct. 2948 ,119 L.Ed.2d 571 ] (1992), and Robertson v. State,304 Ark. 332 ,802 S.W.2d 920 (1991)).
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Here, the fact that after consideration, the jury did not regard Appellant’s change as a mitigating factor was not an error, as the jury was free to believe or disbelieve Appellant’s witness.
Id. at 317-18,
Nooner replies to the State’s citation to Hill with the argument that Anderson,
A comparison of the two verdict forms reveals that Anderson was not contrary to the law announced in both Hill cases, but was simply a correct result based on the forms and instructions used in Anderson’s trial. Indeed, Anderson relied on the new language of the amended form to hold that the jury’s decision to check Form 2 D was clearly in error. There can be no doubt that, when mitigating evidence is in fact presented to a jury, it is clear error for the jury to check AMI Crim.2d 1008 Form 2 D and to disregard the parenthetical instruction “[c]heck only if no evidence of a mitigating circumstance is presented.” To 117support its holding with respect to Form 2 D, the court in Anderson relied on the new language from option C of Form 2: ‘While the evidence may not have established that a mitigating circumstance ‘probably existed’ for the murder, it was certainly presented for that purpose.” Anderson,
We find additional support for our conclusion that the Hill cases have not been overruled by implication because this court continues to cite them with approval even after Anderson was decided. See, e.g., Decay v. State,
We find even further support for our conclusion that the Hill cases are still good law in Dansby v. Norris,
Dansby directs our attention to Williams v. State,2011 Ark. 534 [2011 WL 6275536 ], where the Arkansas Supreme Court held that a jury’s decision to check Option D of Form 2 in a capital case was reversible error, because the defendant had presented “unrebutted evidence in mitigation.” Id. at 5 [2011 WL 6275536 ]. The court reasoned that if the jury did not believe that the evidence presented “rose to the level of mitigating evidence,” then it should have marked Option C of Form 2. Id. at 6 [2011 WL 6275536 ]. Applying its precedent in Anderson v. State,357 Ark. 180 ,163 S.W.3d 333 (2004), the court held that the jury’s completion of Form 2 meant that “the jury eliminated from its consideration all evidence presented of mitigating circumstances and sentenced Williams to death solely based on the aggravating circumstance, which is reversible error.” Williams, 2011 [Ark. 534], at 6 [2011 WL 6275536 ].
We note first that while Williams was decided after a panel of this court ruled on Dansby’s application to expand the certificate of appealability, Williams announced no new rule of law. Williams is an unpublished decision that applied the Arkansas court’s 2004 decision in Anderson.[2 ]
Reviewing the matter nonetheless, and assuming for the sake of analysis that the claim is not procedurally defaulted, we conclude that Dansby has not made a substantial showing of a denial of a constitutional right. See 28 U.S.C. § 2253(c); Slack v. McDaniel,529 U.S. 473 , 483-84 [120 S.Ct. 1595 ,146 L.Ed.2d 542 ] (2000). Williams does not cite federal law, and |13neither does Anderson. It is not even clear that these state court decisions purport to apply the Eighth Amendment rather than Arkansas law....
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Dansby appears to propose a different Eighth Amendment rule-namely, that if the defendant submits evidence that he claims to be mitigating, then a failure of the jury to find that there was evidence of a mitigating circumstance violates the Eighth Amendment. Dansby identifies no decision of the Supreme Court of the United States that so holds, and the Arkansas Supreme Court actually rejects the proposition. In Hill v. State,331 Ark. 312 ,962 S.W.2d 762 (1998), the state supreme court held that “ ‘[a] jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance.’ ” Id. at 764 (quoting Bowen v. State,322 Ark. 483 ,911 S.W.2d 555 , 561 (1995)). A jury, the court explained, may reject all or any part of a defendant’s mitigating evidence.962 S.W.2d at 764 . In this very case, the state supreme court cited Hill for that point in dismissing Dansby’s claim that his counsel was ineffective at the penalty phase because the jury found no mitigating factors. [Dansby v. State,350 Ark. 60 ] 84 S.W.3d [857,] at 862-63 [ (2002) ]. Dansby’s jury was free to reject his proposed mitigating evidence. That the jury marked Option D on the verdict form does not translate into a substantial showing of a constitutional violation.
Dansby,
The Eighth Circuit has thus rejected the very argument raised here, which is that the interplay between Williams, Anderson, and Hill,
C. “At-the-Time-of-the-Murder” Restriction
Nooner argues alternatively that his direct-appeal mandate should be recalled and his death sentence reversed because the sentencing instructions given in his case and the prosecutor’s repeated arguments erroneously directed the jury to find and weigh only those mitigating circumstances that existed “at the time of the murder,” in violation of the Eighth Amendment under Penry v. Lynaugh,
United States Supreme Court precedent has long recognized that a sentencing jury must be able to give a “ ‘reasoned moral response’ ” to any relevant mitigating evidence when deciding to sentence a defendant to death. Brewer,
Nooner asserts that this issue is within the narrow class of fundamental errors that may be raised in a motion to recall the mandate because the consideration of mitigating evidence is essential to consideration of the death penalty; therefore, this court was obligated to raise this issue sua sponte during its independent review on direct appeal, even in the absence of argument or objection below from defense counsel. Nooner asserts that we should grant recall of the mandate in order to correct this court’s failure to discover sua sponte on direct appeal the Eighth Amendment violation that he alleges occurred as a result of the “at-the-time-of-the-murder” restriction in the verdict form and in the prosecutor’s closing arguments. The State responds that Nooner fails to establish any obligation on this court’s part to have raised and considered this issue sua sponte on direct appeal, and, hence, fails to establish a defect in appellate proceedings to warrant recall of the mandate.
We agree with the State that Nooner has not identified a reversible error that this court was obligated to raise sua sponte on his direct appeal; therefore, he has not demonstrated a breakdown in the appellate process required for the extraordinary circumstances that warrant recall of the mandate. First, based on Arkansas Supreme Court Rule 4 — 3(h) (1995), which was applicable to Nooner’s direct appeal in 1995, the scope of our review of death-penalty cases was limited to rulings on objections decided adversely to him. This limited review presupposed a contemporaneous objection at trial. As previously noted, this court’s ^mandatory review in death cases for prejudicial and egregious errors pursuant to Rule 10 is applicable only to cases in which a sentence of death has been imposed after August 1, 2001. See Newman v. State,
Nooner concedes that this court denied a similar Eighth Amendment claim on the merits in Thessing,
Even if we acknowledge a distinction between Thessing, in which the jury found one mitigating circumstance, and Nooner’s case, in which the jury found no mitigating circumstances, we still do not think there is a reasonable likelihood that the jurors’ interpretation of the trial court’s instructions prevented their consideration of his troubled childhood, his recently established relationship with his father, and his having become a father himself. Nooner’s Form 2 listed all three potential mitigators under each option: A, B, and C; moreover, each option included a blank space for the jury to write in any additional mitigators that they might have found. Options A and C included the language challenged by Nooner, “at the time of the murder,” but option B did not. Thus, if one or more members of the jury felt constrained by the temporal language challenged here, they had the opportunity of so indicating by cheeking option B of Form 2. The jury did not, however, | ¾select any of the potential mitigators under option B, nor did the jury write in any other mitigators not specifically listed. We do not perceive the prosecutor’s comments as problematic because the jury was instructed that the opening statement, remarks by counsel during trial, and closing argument are not evidence. Arguments of counsel generally carry less weight with a jury than instructions from the court, as the former are usually billed in advance to the jury as matters of argument, not evidence, and the latter are viewed as definitive and binding statements of the law. See Boyde,
Under the foregoing facts, Nooner has not demonstrated a likelihood that the jury felt inhibited from considering the relevant mitigating evidence. We see a marked distinction between the instant case and the companion cases of Brewer and Abdul-Kabir on which Nooner relies. Those cases involved a refusal of the trial court to give any instruction on mitigating considerations. In comparison, Nooner has demonstrated, at best, only a possibility that the jury felt constrained by the “at-the-time-of-the-murder” instruction and argument. “[A] capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility” that the jury was inhibited from considering relevant mitigating evidence. Boyde,
Even assuming that Thessing,
D. Interests of Justice Demand Recall
As a final point in support of recalling his direct-appeal mandate, Nooner contends that the interests of justice, as well as this court’s “steadfast commitment to ensuring fundamental fairness in capital cases,” require that his motion be granted, that his death sentence be vacated, and that his case be remanded for resentencing where a properly instructed jury should have the opportunity to consider all the evidence supporting a life sentence in his case. He argues further, in reply, that he would be able to provide “voluminous, weighty, and unambiguously mitigating evidence in the event of resentencing.” In his brief, he refers primarily to the 2007 report of Dr. Xavier Amador, Ph.D., which he attached to his motion and his brief, that documents how Nooner suffered chronic physical abuse and neglect during his childhood and that he also has a long and well-documented history of severe mental illness and was ultimately diagnosed with Schizophrenia. He also refers to the confession his accomplice made during federal-habeas proceedings that it was he, not Nooner, who actually committed the murder. See Ark.Code Ann. § 5-4-605(5) (Repl.2013) (specifying that it is |ma mitigating circumstance that “[t]he capital murder was committed by another person and the defendant was an accomplice and his or her participation was relatively minor”).
As we observed when reciting the procedural history of this ease, the Eighth Circuit Court of Appeals found no merit to Nooner’s claim of actual innocence based on his accomplice’s recantation of his statements to police and his posttrial confession. Nooner,
As for Nooner’s claim that he suffers from a severe case of Schizophrenia, we acknowledge his counsel’s concession that such an issue is not yet ripe for our consideration until a date for execution is set. We acknowledge further that counsel intends to seek a stay of execution, should one be set, based on the contention that Nooner is incompetent for execution under Panetti,
|28Because Nooner has had his day in court on his claim of actual innocence based on the confession of his accomplice, we conclude that the interests of justice do not weigh in favor of recalling the mandate; rather, they weigh in favor of the profound interests of repose that attach to an appellate court’s mandate. In addition, the interests of justice do not weigh in favor of recalling Nooner’s direct-appeal mandate to hear his not-yet-ripe claim of incompentency to be executed.
III. Conclusion
Our recitation in section I.B. infra of the procedural history of Nooner’s case demonstrates that he has had multiple levels of review, both direct and collateral, from both our state courts and the federal courts over a period of almost twenty years. According to these decisions, no fundamental or constitutional error has occurred. Nooner thus attempts to obtain an extraordinary remedy of last resort-a recall of his direct-appeal mandate. The reality is that there is nothing extraordinary about Nooner’s trial or his postcon-viction and collateral-review proceedings.
This court’s procedure for recalling its direct-appeal mandate in death-penalty cases has been described as “an act of grace by the state that is not constitutionally mandated.” Wooten,
12?)We have considered all of Nooner’s arguments, and conclude that none of them demonstrates extraordinary circumstances to justify recalling the mandate in his direct appeal. We therefore deny Nooner’s motion.
J^APPENDIX I
[As used in Nooner v. State,
INSTRUCTION NO. [22 (AMI CRIM. 1509) ] FORM 2
MITIGATING CIRCUMSTANCES
A.() We unanimously find that the following mitigating circumstances probably existed at the time of the murder:
(Check applicable circumstances and specify any additional ones.)
() The capital murder was committed while Terrick Terrell Nooner was under extreme mental or emotional disturbance.
() The youth of Terrick Terrell Noon-er at the time of the commission of the capital murder.
() Terrick Terrell Nooner has a long history of alcohol and drug abuse.
() Other: Specify in Writing.
B.() One or more members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree:
() The capital murder was committed while Terrick Terrell Nooner was under extreme mental or emotional disturbance.
() The youth of Terrick Terrell Noon-er at the time of the commission of the capital murder.
() Terrick Terrell Nooner has a long history of alcohol and drug abuse.
() Other: Specify in Writing.
k-
C.() There was evidence of the following mitigating circumstances, but the jury unanimously agreed that they did not exist at the time of the murder.
() The capital murder was committed while Terrick Terrell Nooner was under extreme mental or emotional disturbance.
() The youth of Terrick Terrell Noon-er at the time of the commission of the capital murder.
() Terrick Terrell Nooner has a long history of alcohol and drug abuse.
() Other: Specify in Writing.
D.(X) There was no evidence of any mitigating circumstance.
(Check if applicable.)
/s/_
FOREMAN
|,^APPENDIX II
[As used and quoted in Anderson v. State,
AMI CRIM. 2D 1008 FORM 2
A. () We unanimously find that the following mitigating circumstance(s) probably existed:
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B. () One or more members of the jury believed that the following mitigating circumstance(s) probably existed, but the jury did not unanimously agree that such mitigating circumstance(s) probably existed:
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C. () There was some evidence presented to support the following circumstance(s). However, having considered this evidence, the jury unanimously agreed it was insufficient to establish that the mitigating circumstance(s) probably existed:
(If any circumstances are checked in this section, you should not complete Section D. Any factor or factors checked in this section should not be checked again in any other section.)
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D. () No evidence of a mitigating circumstance was presented by either party during any portion of the trial. (Check only if no evidence of a mitigating circumstance was presented.)
Notes
. The point at which the dissent's view diverges from the majority view is in the analysis of the amended language in the verdict forms. The dissent sees the amended form as being only "slightly reworded,” while the majority sees the new language as a substantial and material amendment. It is the differing language between the two forms, rather than a misapplication of the law to the facts, that explains the differing results in the Anderson and the Hill cases.
. We note that although the editors at West Publishing Company chose not to report the Williams opinion in its Southwestern Reporter, all opinions of this court issued on or after July 1, 2009, have precedential value and are officially published by this court on its website.
Dissenting Opinion
dissenting.
IsaBecause there is no written proof in the record of this case that the jury considered the evidence of mitigating circumstances, I must respectfully dissent. A jury must be able to consider, and may not refuse to consider, any relevant mitigating evidence offered by a defendant as a basis for a sentence less than death. See Buchanan v. Angelone,
I wish to make clear that no fault lies with the jury in this case. For many years, this court failed to recognize the lack of clarity in Form 2 of the capital-murder verdict forms,
Our decisions in Steven Hill v. State,
If ... a decision or series of decisions are clearly incorrect, either through a mistaken conception of the law, or through a misapplication of the law to the facts, and no injurious results would follow from their overthrow, and especially if they were injurious or unjust in their operation, it is the duty of the court to overrule such cases. Hasty or crude decisions should be examined without fear and reversed without reluctance.
Id. at 522-23,
The court’s errors in Steven Hill and Darrel Hill were a result of the misapplication of the law to the facts of those cases. In Steven Hill, the appellant had turned eighteen about two months before the crimes were committed; this evidence was presented to the jury and was submitted on the verdict form as a mitigating circumstance.
In Giles v. State,261 Ark. 413 ,549 S.W.2d 479 (1977) ... the jury found that the youth of the appellant, who was apparently 19 or 20 when the crime was committed, was not a mitigating factor. This court affirmed the jury’s finding, stating, “[a]ny hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances.” Giles, supra; see also Neal v. State,261 Ark. 336 ,548 S.W.2d 135 (1977).
We do not interpret the jury’s action to mean that they did not consider the evidence of mitigation that was offered. Rather we find the jury determined that the appellant’s youth was not a mitigating factor, as they were entitled to do, and so indicated that no mitigating circumstances were found.
Steven Hill,
Our reliance in Steven Hill on Giles and Neal was misplaced because the verdict forms in Giles and Neal were substantially different from the verdict forms in Steven Hill. In Giles, ^neither section D, nor anything analogous to section D, was a part of the mitigating-eircumstances verdict form. The jury in Giles was asked to determine only whether each mitigating circumstance existed. By marking each proposed mitigating circumstance, the Giles jury acknowledged that it had considered the evidence and then made a finding about the evidence. Likewise, the verdict form from the Neal case reveals that the jury was asked to consider whether each mitigating circumstance existed and make a finding to that effect on the verdict form. As in the Giles case, nothing like section D was a part of the mitigating-circumstances verdict form in Neal.
Key to understanding the error in Steven Hill is the distinction between & failure to consider evidence of a mitigating circumstance and a failure to find a mitigating circumstance. Simply stated, Giles and Neal were “failure to find” cases and Steven Hill was a “failure to consider” case.
137This court perpetuated this error in Darrel Hill v. State,
Appellant provided several witnesses to testify that he had changed and had become a productive person in prison. Appellant argues that, at a minimum, the jury should have at least found that there was evidence of mitigating circumstances, even if they agreed unanimously that it did not exist.... Appellant argues that the jury showed that it did not consider the evidence by checking that part of the form [Part D] stating that it found no evidence of mitigation.
This court has previously held that “[a] jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance.” Bowen,322 Ark. at 497 ,911 S.W.2d at 561 (citing Duncan v. State,291 Ark. 521 ,726 S.W.2d 653 (1987), and Hill v. State,289 Ark. 387 ,713 S.W.2d 233 (1986), cert. denied,479 U.S. 1101 [107 S.Ct. 1331 ,94 L.Ed.2d 182 ], and cert. denied,484 U.S. 873 [108 S.Ct. 208 ,98 L.Ed.2d 159 ] (1987)). This court held further that the jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it the jurors believe to be true. Id. (citing Davasher v. State,308 Ark. 154 ,823 S.W.2d 863 , cert. denied,504 U.S. 976 [112 S.Ct. 2948 ,119 L.Ed.2d 571 ] (1992), and Robertson v. State,304 Ark. 332 ,802 S.W.2d 920 (1991)).... Here, the fact that after consideration, the jury did not regard Appellant’s change as a mitigating factor was not an error, as the jury was free to believe or disbelieve Appellant’s -witness.
Id. at 316-17, 318,
fyAs I previously stated, I believe that Steven Hill and Darrel Hill were implicitly overruled
We agree that the jury’s decision to cheek Form 2 D was clearly in error. There was unrebutted evidence offered in mitigation by Anderson regarding the fact that he grew up in an abusive family, that his mother was mentally retarded, and that he was separated from his family and sent to a foster home at an early age. While the evidence may not have established that a mitigating circumstance “probably existed” for the murder, it was certainly presented for that purpose. What the jury should have checked, if it did not believe the evidence presented rose to the level of mitigating evidence, is Form 2 C: “C. () There was some evidence presented to support the following circumstance(s). However, having considered this evidence, the jury unanimously agreed it was insufficient to establish that the mitigating circumstance(s) probably existed[.]” The jurors did not check Form 2 C; nor did they mark any of the proposed mitigators to show that some evidence was offered to support them.
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The Note on Use to Form 2 in our Model Criminal Instructions refers specifically to section D and states that it should be used only when neither the State nor the defendant has introduced any mitigating evidence at any point during the trial. See AMI Crim.2d 1008, Form 2. That was not the situation in the instant case. Without proof that the jury at least considered and examined the mitigating evidence ^presented, an essential and fundamental step in the weighing process was not taken, and the death sentence became automatic.
We are mindful that the State contends that the jury’s marking of Form 2 D is harmless error, because the jury found that the aggravator outweighed any mitigators in Form 3. What the State’s analysis presupposes, however, is that the jury considered the mitigating evidence. By checking Form 2 D, the jury said it did not.
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Based on Form 2 D, we can only conclude that the jury eliminated from its consideration all evidence presented of mitigating circumstances and sentenced Anderson to death solely based on the aggravating circumstance. This, we conclude, was reversible error.
Anderson,
The majority states that our decision in Anderson is not inconsistent with our decisions in Steven Hill and Darrel Hill because Anderson involved different instructions and verdict forms than those used in Steven Hill and Darrel Hill. According to the majority, a comparison |4nof the verdict forms used in Anderson, see AMI Crim.2d 1008, with the verdict forms used in Steven Hill and Darrel Hill, see AMI Crim. 1509, reveals that Anderson was not contrary to the law announced in Steven Hill and Darrel Hill, but was simply a correct result based on the forms and instructions used in Anderson’s trial. I disagree. While the forms and instructions used in Anderson’s trial may have been slightly reworded, they were not substantially different from the instructions and forms used in Steven Hill’s trial and Darrel Hill’s trial. Moreover, both versions of the verdict forms were written in accordance with statutory sentencing requirements for capital cases. The procedure for considering and weighing evidence when Anderson was tried was the same when Steven Hill and Darrel Hill were tried. In other words, while the language in the verdict forms may have changed slightly, the law governing sentencing procedures did not. By marking Form 2 D, Steven Hill’s jury and Darrel Hill’s jury, like the jury in Anderson, stated that it did not consider mitigating evidence. Anderson,
The majority states that it is the “differing language between” the form used in Anderson and the forms used in Steven Hill and Darrel Hill that accounts for the differing results in the Anderson and Hill cases. Whether in Arkansas Model Jury Instruction-Criminal 1509, which was used in the Hill cases, or Arkansas Model Jury Instruction-Criminal 2d 1008, which was used in Anderson, the purposes of Form 2 C and D are the same. Form 2 D should be marked by the jury only if there is no evidence of mitigating circumstances submitted to the jury. See, e.g., Anderson v. State,
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(Emphasis added.)
In short, if there was evidence of mitigating circumstances, then the jury should mark Form 2 C. If there was no evidence of mitigating circumstances, then the jury should mark Form 2 D. Having examined the two versions of Form 2 C and D, I fail to see the “substantial and material amendment” relied on by the majority to explain the differing results in Anderson and the Hill cases. What I do see is that the majority has relied on changes in the wording (but not changes in the meaning) of the verdict forms in an attempt to distinguish Anderson from the Hill cases. In other words, the majority has exalted form over substance to justify disparate treatment of death-row inmates.
Anderson cannot be reconciled with Steven Hill and Darrel Hill. Our decision in Williams v. State,
While the evidence presented may or may not have established that a mitigating circumstance “probably existed” for the murder, it was certainly offered for that purpose. If the jury did not believe that the evidence presented rose to the level of mitigating evidence, it should have marked subsection C of Form 2. The jurors did not check Form 2 C; nor did they mark any of the proposed miti-gators to show that some evidence was offered to support them. While each juror was polled generally on whether his or her verdict was a death sentence, there was no polling of the jury regarding any mitigating circumstance.
As we held in Anderson [v. State,357 Ark. 180 ,163 S.W.3d 333 (2004)], the manner in which the jury completed Form 2 D allows us only to conclude that the jury eliminated from its consideration all evidence presented of mitigating circumstances and sentenced Williams to death solely based on the aggravating circumstance, which is reversible error. This error was obviously not discovered during Williams’s direct appeal, which constitutes a defect or breakdown in the appellate process in this death-penalty case requiring heightened scrutiny. Because of these unique circumstances, we find we must recall the mandate and reopen Williams’s direct appeal. Additionally, we must reverse the death sentence and order re-sentencing.
Williams,
|4SNooner’s jury, like the jury in Williams, was instructed in accordance with Arkansas Model Jury Instruction-Criminal 1509 when it marked Form 2 D. If the jury in Nooner’s case did not believe that the evidence presented rose to the level of mitigating evidence, it should have marked Form 2 C. Anderson,
Finally, after reading the majority’s discussion of the inconsistencies in our decisions regarding whether the three factors first announced in Robbins v. State,
LsAPPENDIX I
[As used in Giles v. State,
Form B Mitigating Circumstances
The Jury will make each of the following findings by having its Foreman place a check mark in the appropriate space in the sentence in accordance with the Jury’s response. These findings must be unanimously made. Each member of the Jury will then sign the bottom of the form.
WE THE JURY FIND THAT:
(a) () The capital felony was committed while the Defendant was acting under unusual pressures or influence, or under the domination of another person.
(X) The capital felony was not committed while the Defendant was acting under unusual pressures or influence, or under the domination of another person.
(b) () The capital felony was committed while the capacity of the Defendant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law, was impaired as a result of mental disease or defect, intoxication or drug abuse.
(X) The capital felony was not committed while the capacity of the Defendant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law, was impaired as a result of mental disease or defect, intoxication or drug abuse.
(c) () The Defendant’s age, at the time of the commission of the felony capital [sic], was a mitigating circumstance.
(X) The Defendant’s age, at the time of the commission of the capital felony, was not a mitigating circumstance.
(d) () The capital felony was committed by another person and the Defendant was an accomplice or his participation relatively minor.
(X) The capital felony was not committed by another person and the Defendant was not an accomplice or his participation relatively minor.
(e) () Additional mitigating circumstances not mentioned above exist.
|4(i(X) Additional mitigating circumstances not mentioned above do not exist. (If such other circumstances are found to exist, please indicate them on the reverse side of this form.)
(f) () The capital felony was committed while the Defendant was under extreme mental or emotional disturbance.
(X) The capital felony was not committed while the Defendant was under extreme mental or emotional disturbance.
(g) () One or more of the above listed mitigating circumstance(s) existed.
(X) One or more of the above listed mitigating circumstance(s) does not exist.
|47APPENDIX II
[As used in Neal v. State,
MITIGATING CIRCUMSTANCES
1. The capital felony murder was committed while the defendant was under extreme mental or emotional disturbance:
DOES EXIST_ DOES NOT EXIST _X
2. The capital felony was committed while the defendant was acting under unusual pressure or influence, or under the domination of another person:
DOES EXIST_ DOES NOT EXIST X
3. The capital felony was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication or drug abuse:
DOES EXIST_ DOES NOT EXIST _X
4. The youth of the defendant at the time of the commission of the capital felony:
DOES EXIST_ DOES NOT EXIST _X
5. The capital felony was committed by another person and the defendant was an accomplice or his participation was relatively minor.
DOES EXIST_ DOES NOT EXIST _X
|4SAPPENDIX III
[As used in Steven Hill v. State,
AMCI 1509
Form 2
MITIGATING CIRCUMSTANCES
A. () We unanimously find that the following mitigating circumstances probably existed at the time of the murder: (Check applicable circumstances and specify any additional ones.)
() The capital murder was committed while Steven Hill was under extreme mental or emotional disturbance.
() The capital murder was committed while Steven Hill was acting under unusual pressures or influences or under the domination of another person.
() The youth of Steven Hill at the time of the commission of the capital murder.
() Other: Specify in writing_
B. () One or more members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree:
() The capital murder was committed while Steven Hill was under extreme mental or emotional disturbance.
() The capital murder was committed while Steven Hill was acting under unusual pressures or influences or under the domination of another person.
() The youth of Steven Hill at the time of the commission of the capital murder.
() Other: Specify in writing_
C. () There was evidence of the following mitigating circumstances, but the jury unanimously agreed that they did not exist at the time of the murder:
14ci() The capital murder was committed while Steven Hill was under extreme mental or emotional disturbance.
() The capital murder was committed while Steven Hill was acting under unusual pressures or influences or under the domination of another person.
() The youth of Steven Hill at the time of the commission of the capital murder.
() Other: Specify in writing_
D. (X) There was no evidence of any mitigating circumstance.
(Check if applicable.)
/s/-
FOREMAN
ImAPPENDIX IV
[As used in Darrel Hill v. State, 3B1 Ark. 312,
FORM 2 MODIFIED
MITIGATING CIRCUMSTANCES
A. () We unanimously find that the following mitigating circumstances probably existed:
(Check applicable circumstances and specify any additional ones.)
() The capital murder was committed while Darrel Hill was under extreme mental or emotional disturbance.
() The murder was committed while Darrel Hill was acting under unusual pressures and influences or under the domination of another person.
() The capital murder was committed while the capacity of Darrel Hill to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
() Other:
() Darrel Hill has a good prison record.
() Darrel Hill has expressed remorse for the crime.
() Darrel Hill grew up in a dysfunctional family.
() Darrel Hill has friends who care about him.
() Darrel Hill is a changed person.
() Darrel Hill has been active in the prison ministry while in jail.
() Darrel Hill has a long history of prior mental commitments.
() Darrel Hill is unlikely to commit another crime that would constitute a threat to society.
() Darrel Hill’s poor medical condition and heart bypass surgery.
151() Other mitigating circumstances not specifically identified by the State or the defense_
B. () One or more of the members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree:
() The capital murder was committed while Darrel Hill was under extreme mental or emotional disturbance.
() The murder was committed while Darrel Hill was acting under unusual pressures and influences or under the domination of another person.
() The capital murder was committed while the capacity of Darrel Hill to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of his mental disease or defect, intoxication, or drug abuse.
() Other:
() Darrel Hill has a good prison record.
() Darrel Hill has expressed remorse for the crime.
() Darrel Hill grew up in a dysfunctional family.
() Darrel Hill has friends who care about him.
() Darrel Hill is a changed person.
() Darrel Hill has been active in the prison ministry while in jail.
() Darrel Hill has a long history of prior mental commitments.
() Darrel Hill is unlikely to commit another crime that would constitute a threat to society.
() Darrel Hill’s poor medical condition and heart bypass surgery.
() Other mitigating circumstances not specifically identified by the State or the de-fense_
1,⅞0. () There was evidence of the following mitigating circumstances, but the jury unanimously agreed that they did not exist:
() The capital murder was committed while Darrel Hill was under extreme mental or emotional disturbance.
() The murder was committed while Darrel Hill was acting under unusual pressures and influences or under the domination of another person.
() The capital murder was committed while the capacity of Darrel Hill to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
() Other:
() Darrel Hill has a good prison record.
() Darrel Hill has expressed remorse for the crime.
() Darrel Hill grew up in a dysfunctional family.
() Darrel Hill has friends who care about him.
() Darrel Hill is a changed person.
() Darrel Hill has been active in the prison ministry while in jail.
() Darrel Hill has a long history of prior mental commitments.
() Darrel Hill is unlikely to commit another crime that would constitute a threat to society.
() Darrel Hill’s poor medical condition and heart bypass surgery.
() Other mitigating circumstances not specifically identified by the State or the de-fense_
D. (X) There was no evidence of any mitigating circumstance. (Check if applicable).
IfiVs/-
FOREMAN
| mAPPENDIX V
[As used in Williams v. State,
FORM 2-MITIGATING CIRCUMSTANCES
A. () We unanimously find that the following mitigating circumstances probably existed at the time of the murder:
(Check applicable circumstances and specify any additional ones.)
() The capital murder was committed while Frank Williams was under extreme mental or emotional disturbance.
() The capital murder was committed while Frank Williams was acting under unusual pressures or influences or under the domination of another person.
() The capital murder was committed while the capacity of Frank Williams to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
() The youth of Frank Williams at the time of the capital murder.
() Other: (Specify in writing.)_
B. () One or more members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree:
(Check applicable circumstances and specify any additional ones.)
() The capital murder was committed while Frank Williams was under extreme mental or emotional disturbance.
() The capital murder was committed while Frank Williams was acting under unusual pressures or influences or under the domination of another person.
() The capital murder was committed while the capacity of Frank Williams to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
I m() The youth of Frank Williams at the time of the capital murder.
() Other: (Specify in writing.)_
C. () There was evidence of the following mitigating .circumstances, but the jury unanimously agreed that they did not exist at the time of the murder:
(Check applicable circumstances and specify any additional ones.)
() The capital murder was committed while Frank Williams was under extreme mental or emotional disturbance.
() The capital murder was committed while Frank Williams was acting under unusual pressures or influences or under the domination of another person.
() The capital murder was committed while the capacity of Frank Williams to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
() The youth of Frank Williams at the time of the capital murder.
() Other: (Specify in writing.)_
D. (X) There was no evidence of any mitigating circumstance.
(Check if applicable.)
/s/-
FOREPERSON
APPENDIX VI
Arkansas Model Jury Instruction-Criminal 2d 1008 (2012)
Form 2
MITIGATING CIRCUMSTANCES
For each of the following mitigating circumstances, you should place a checkmark in the appropriate space to indicate the number of jurors who find that the mitigating circumstance probably exists.
[The capital murder was committed while (defendant) was under extreme or emotional disturbance.
Check one of the following:
_All members of the jury find that this circumstance probably exists.
_At least one, but not all members of the jury find that this circumstance probably exists.
_No member of the jury finds that this circumstance probably exists.]
[The capital murder was committed while (defendant) was acting under unusual pressures or influences or under the domination of another person.
Check one of the following:
_All members of the jury find that this circumstance probably exists.
_At least one, but not all members of the jury find that this circumstance probably exists.
_No member of the jury finds that this circumstance probably exists.]
[The capital murder was committed while the capacity of (defendant) to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
| fi7Check one of the following:
_All members of the jury find that this circumstance probably exists.
_At least one, but not all members of the jury find that this circumstance probably exists.
_No member of the jury finds that this circumstance probably exists.]
[The youth of (defendant) at the time of the commission of the capital murder. Check one of the following:
_All members of the jury find that this circumstance probably exists.
_At least one, but not all members of the jury find that this circumstance probably exists.
_No member of the jury finds that this circumstance probably exists.]
[The capital murder was committed by another person and (defendant) was an accomplice and (his)(her) participation relatively minor.
Cheek one of the following:
_All members of the jury find that this circumstance probably exists.
_At least one, but not all members of the jury find that this circumstance probably exists.
_No member of the jury finds that this circumstance probably exists.]
[ (Defendant) (has) (had) no significant history of prior criminal activity.
Check one of the following:
All members of the jury find that this circumstance probably exists.
At least one, but not all members of the jury find that this circumstance probably exists.
_No member of the jury finds that this circumstance probably exists.]
| r,«Other mitigating circumstances. Specify below in writing any other mitigating cir-eumstances that all members of the jury find probably exists. If no member of the jury finds that other mitigating circumstances probably exist, leave the space below blank.
Other mitigating circumstances. Specify below in writing any other mitigating circumstances that all members of the jury find probably exists. If no member of the jury finds that other mitigating circumstances probably exist, leave the space below blank.
FOREMAN
NOTE ON USE
With respect to each mitigating circumstance listed on Form 2, the jury should indicate that either (1) all jurors find that a mitigating circumstance probably exists; or (2) at least one, but not all jurors find that the mitigating circumstance probably exists; or (3) no juror finds that the mitigating circumstance exists.
Mitigating circumstances include, but are not limited to, those listed in Ark.Code Ann. § 5-4-605. If supported by the evidence, it is permissible to include on Form 2 additional mitigating circumstances proffered by the defendant if the form is consistent with that above.
Mitigating circumstances are not limited to those in existence at the time of the capital murder but may include events that have occurred after the defendant’s arrest or even during imprisonment pending a successful appeal from a death sentence. Skipper v. South Carolina,
The final portion of Form 2 permits the jury to specify any mitigating circumstances not specifically listed on the form.
IsaThere may be rare and extraordinary cases in which no specific mitigating circumstances are listed on the verdict form submitted to the jury. In such a case, Form 2 should include only the final portion in which the jury may specify in writing its own mitigating circumstances. In addition, Form 2 should be modified to require the jury to write “None” in the space provided for mitigating circumstances, thereby permitting an appellate court to determine that the jury considered and rejected any mitigating circumstances.
. Form 2 has caused much confusion for both juries and courts. See Williams v. State,
. Like the verdict forms in Nooner’s case, the verdict forms in Steven Hill’s case were based on Arkansas Model Jury Instruction-Criminal 1509.
. The verdict forms at issue in Giles, Neal, and Steven Hill are reproduced in full and attached as appendices to this dissent. See Appendices I — III.
. While we recognized the distinction between the two concepts in Bowen v. State,
. Form 2 as used in Darrel Hill is reproduced in full and attached as an appendix to this dissent. See Appendix IV.
. The majority states that the Hill cases have not been implicitly overruled because this court has continued to cite them with approval even after Anderson was decided. The principle of law announced in the Hill cases — that the jury is not required to find a mitigating circumstance just because the defendant presents some evidence that could serve as the basis for finding the mitigating circumstance-remains good law. This court erred in the Hill cases because it misapplied that principle of law to the facts of those cases when it ignored the plain language of the verdict forms and held, in effect, that if a jury considered and then rejected mitigating evidence, it had the option of marking either Form 2 C or D. Anderson implicitly overruled this misapplication of the law.
. So great was our concern in Anderson about the confusion caused by Form 2 D, we urged "circuit courts, prosecutors, and defense counsel to refer to the Note on Use for Form 2 with respect to when the form should be modified to exclude section D."
Section D has been eliminated from Form 2. Jurors are now instructed as follows:
For each of the following mitigating circumstances, you should place a checkmark in the appropriate space to indicate the number of jurors who find that the mitigating circumstance probably exists.
See AMI Crim.2d 1008 (2012). This verdict form is reproduced in full and attached as an appendix to this dissent. See Appendix VI.
. Form 2 as used in Williams is reproduced in full and attached as an appendix to this dissent. See Appendix V.
. The majority states that this court erred in Williams when it concluded that by checking Form 2 D, Williams's jury made the same error that Anderson’s jury had made when it checked Form 2 D in Anderson. According to the majority, the juries could not have made the same error because the verdict forms were not the same — Form 2 D in Anderson was based on AMI Crim.2d 1008, while Form 2 D in Williams was based on AMI Crim. 1509. I find it odd that the majority relies on this "distinction,” given that, less than three years ago, this court rejected the same "distinction” argument made by the State when it petitioned for rehearing in Williams.
. As I stated in my dissent in Wooten v. State,
this court made it clear that each petition to recall a mandate is examined on its own merits — that such cases are "one of a kind, not to be repeated.’ ” Robbins,353 Ark. at 564 ,114 S.W.3d at 223 . A general test cannot be created from a case that clearly states it is one of a kind. Each petition to recall a mandate must be separately examined to determine whether justice requires that the mandate be recalled under the unique facts of that particular case.
Wooten,