Edward Charles PICKENS v. STATE of Arkansas
CR 86-42
Supreme Court of Arkansas
June 1, 1987
Rehearing denied June 29, 1987.*
730 S.W.2d 230
* Hickman, J., would grant rehearing.
Steve Clark, Att‘y Gen., by: Clint Miller, Asst. Att‘y Gen., for appellee.
TOM GLAZE, Justice. On October 20, 1975, several people
Appellant‘s first argument centers on his having been found guilty of capital murder, after which, the jury, during the penalty phase, unanimously imposed the death sentence. In doing so, the jury was required to find that the aggravating circumstances of the murder outweighed all mitigating circumstances found to exist and the aggravating circumstances justified a sentence of death beyond a reasonable doubt.
In support of this argument, appellant relies upon the Supreme Court‘s recent holding in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669 (1986). In Skipper, the trial court excluded the testimony of two jailers and a “regular visitor” regarding the defendant‘s good behavior while he was in jail for seven months awaiting trial. The Supreme Court held the trial
The State argues the Skipper decision should be limited to its facts and suggests a temporal limit exists that precludes a defendant from offering mitigating circumstances which arise after the jury decides the defendant is guilty of capital murder. The State submits to construe the Skipper holding otherwise would permit defendants, who are able to extend their appeals and post-conviction relief processes the longest, an opportunity to collect evidence in mitigation that, in time, is far removed from the circumstances of the crime, as well as from what their characters were when they committed the offense. Such an open-ended procedure, the State suggests, bestows on some death-row inmates the opportunity to accumulate mitigating evidence while others may not be so fortunate. In sum, the State concludes that to permit such erratic opportunities to present additional, post-sentence mitigation would produce capricious, arbitrary and freakish results in the application of the death penalty in Arkansas for years.
While the State‘s argument seems based on sound logic and reason, its position is not unlike the one argued to and rejected by the Court in the Skipper case. The Skipper majority Court‘s holding, and its effect on the mitigating evidence issue before us now, can best be understood by first reading Justice Powell‘s concurring opinion, joined in by then-Chief Justice Burger and Justice Rehnquist. Those concurring Justices clearly stated that they joined in reversing the South Carolina trial court not because it excluded “relevant mitigating evidence” but only because the petitioner was not allowed to rebut evidence and argument used against him. Otherwise, the concurring Justices strongly disagreed with the majority Court holding that a defendant‘s conduct after the crime should be considered “mitigating evidence” and that the sentencer must consider such conduct under the Constitution. Justice Powell concluded:
I see no reason why a State could not, consistent with these principles, exclude evidence of a defendant‘s good behavior in jail following his arrest, as long as the evidence is not offered to rebut testimony or argument such as that tendered by the prosecution here. Such evidence has no bearing at all on the “circumstances of the offense,” since it concerns the defendant‘s behavior after the crime has been committed. (Emphasis supplied.)
We believe the Skipper decision mandates, in clear terms, that any relevant mitigating evidence concerning a defendant‘s character should not be excluded. That evidence may include, as the situation here, the defendant‘s behavior and conduct that existed not only before and at the time of the crime, but also that which occurred before sentencing and during the period of post-conviction relief, should a later resentencing occur. Accordingly, we reverse and remand this cause for resentencing to be conducted consistent with the Skipper holding and this court‘s opinion.
Appellant raises one other meritorious argument. In this respect, appellant argues the trial court erred in refusing to excuse certain jurors for cause, two of them because they indicated they would automatically impose the death penalty if appellant were convicted of murder. The State made every effort to rehabilitate one of those two jurors by leading him to say, “No, sir,” when asked, “Now, we have to be fair, so in the other vein, life without parole is also a possible penalty, so you haven‘t got your mind made up at all that all capital murder deserves [the] death penalty?” Even after such efforts by the prosecutor, this
The Supreme Court has said that a venireman should not be excluded unless he is irrevocably committed to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. See Rector v. State, 280 Ark. 385, 659 S.W.2d 68 (1983) (quoting from Davis v. Georgia, 429 U.S. 122 (1976)). By the same token, a venireman who is automatically committed to imposing the death penalty is, for the defense, good cause for that juror‘s exclusion from service. Clearly, proper inquiry on voir dire in the matter would be to ask the veniremen if they would first consider and weigh the aggravating and mitigating circumstances involved when determining whether death or life imprisonment without parole should be imposed.
Before turning to appellant‘s other points, we mention briefly those we do not reach. Appellant argues that the jurors, in rendering appellant‘s sentence, erroneously found the appellant had presented no evidence of mitigating circumstances. If error occurred in this instance, such error may readily be avoided at the retrial and we need not discuss it.
Similarly, we need not reach appellant‘s contention that the trial court erred in permitting the jury to consider the aggravating circumstance that appellant committed capital murder for pecuniary gain. Appellant presents a two-pronged argument: (1) the jury, which determined appellant‘s guilt at the original trial, also found that the murder the appellant committed was not for pecuniary gain, and appellant urges that to allow another jury,
Appellant does attack one of the other remaining three aggravating circumstances, and we do dispose of that argument since we conclude it is wholly without merit. The jury found the appellant committed capital murder for the purpose of avoiding or preventing an arrest or effecting an escape from custody—an aggravating circumstance under
Appellant next argues the unconstitutionality of
Appellant further urges
It is undeniable, of course, that upon appellate reversal of a conviction the Government is not limited at a new trial to evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence.
We are unaware of any reason why the State should be precluded from introducing additional relevant evidence on remand at a resentencing trial, especially when appellant‘s guilt already has been established and when appellant has in no manner shown or demonstrated prejudice that would result from the admission of such evidence.
Finally, appellant asserts
Next, appellant‘s counsel argues the trial court erred in the application of
Appellant raises two additional points we recently addressed and decided in Duncan v. State, 291 Ark. 521, 721 S.W.2d 653 (1987), viz., that Arkansas‘s sentencing laws for capital murder are death-mandatory provisions prohibited by Woodson v. North Carolina, 428 U.S. 280 (1976), and that the prosecutor is not entitled to a second closing argument under such sentencing laws. In Duncan, supra, we rejected the contention that Arkansas‘s statutory scheme provides for a mandatory death penalty when the jury finds the aggravating circumstances outweigh mitigating circumstances. See
Appellant concludes his argument for reversal of this cause by listing a mixture of issues captioned “other claims.” None of these claims have merit.
Appellant first argues that he was prejudiced because he was led into the courthouse in handcuffs. To note the obvious, appellant‘s case was one of resentencing, only, and the jury was quite aware that appellant was guilty of capital murder since that was the very crime for which the jury was convened to impose a penalty. We fail to see how prejudice would result from a juror‘s view of appellant in handcuffs when that juror already knows the appellant had been convicted of murder nearly nine years earlier. As was said by the court in United States ex rel. Stahl v. Henderson, 472 F.2d 556 (5th Cir.) cert. denied, 411 U.S. 971 (1973), “No prejudice can result from seeing what is already known.” See also Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985).
Next, appellant contends the prosecutor erred in
As previously mentioned, we reverse and remand for resentencing consistent with the directions and holdings set out herein.
HICKMAN, J., concurs.
DARRELL HICKMAN, Justice, concurring. I agree with the majority decision; we have no alternative but to reverse this case. However, I would go further and address the question raised by Collins v. Lockhart, 754 Fed. 258 (8th Cir.) cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). I would not follow the rationale of that decision which has been rejected by other federal and state courts. Glass v. Blackburn, 791 F.2d 1165 (5th Cir. 1986); Wingo v. Blackburn, 783 F.2d 1046 (5th Cir. 1986); Evans v. Thigpen, 631 F. Supp. 275 (S.D. Miss. 1986); State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986). The
If a state decides to limit the death penalty, as Arkansas has done to those who commit murder during the commission of certain felonies, in this case robbery, that is not such an arbitrary, broad category of criminal misconduct that fails or should fail the guidelines laid down by the United States Supreme Court. Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Lockett v. Ohio, 438 U.S. 586 (1978). A jury may still decide not to impose the death penalty.
It is ironical that the few death penalty cases which will slip through the interminable appeal process will mean that those defendants are simply unlucky. The reason for their fate will not be because they deserve the death penalty more than the great majority who are spared that penalty, but because there are no technical reasons left to throw out the death penalty in their case. Is this a fair way to decide who will get the death penalty? It seems a far more freakish way to impose the death penalty than to leave that decision to juries within reasonable guidelines.