Robbins v. State

оf Arkansas A. v. STATE Robert ROBBINS S.W.3d 871 98-1394 CR of Arkansas Court Supreme 26, 2004 delivered February Opinion denied 8, 2004.] April [Rehearing Lambert, for Craig appellant. Beebe, Gen., Weber, Gen.,

Mike A. Ass’t Att’y by: Jeffrey Att’y for appellee. Tom Glaze, Robert Robbins was con Appellant Justice.

victed of murder and sentenced to death in 1998 capital for trial, murder of his White. At ex-girlfriend, Robbins Bethany himself, with the assistance of represented court-appointed standby counsel, and he the death for himself. Rob sought penalty Initially, death; bins was convicted and he waived sentenced to his right Robbins, and we held his waiver was See State v. 335 appeal, proper. 380, Ark. 985 S.W.2d 293 In State v. curiam) (Robbins I). (per Robbins, 377, 336 Ark. 985 S.W.2d 296 (1999) curiam) (Robbins (per we clarified that II), Robbins had also waived his to seek right relief under Ark. R. Crim. P. 37.5. a post-conviction Following case, Robbins’s mother to re-examine this court request by mandate, execution, recalled the Robbins’s and subsequently stayed ordered in order to determine whether Franz v. 296 briefing Ark. 754 S.W.2d 839 should be overruled (1988), and whether the court should review for trial error in all death impose mandatory cases, of whether the defendant desires penalty regardless such a Robbins, review. State v. 337 Ark. 987 S.W.2d 709 (1999) (per curiam) (Robbins III). this court overruled the Franz case in

Upon rebriefing, part, and held that this court has an affirmative duty automatically and all cases for review the record in egregious death-penalty Robbins, 51 errors. State v. S.W.3d prejudicial We remanded the case (1999) (RobbinsIV). for preparation record, and counsel assist in our Id.1Rob- review. appointed filed a brief in bins’s counsel with this compliance appointed Robbins, direction, in State court’s or error held that no we (2000) (Robbins V), prejudicial plain occurred, had been followed. had and all fundamental safeguards death. We affirmed Robbins’s conviction and sentence of relief. In Robbins federal habeas subsequently pursued corpus his habeas that he was entitled to Robbins argued proceedings, relief because the rendered inconsistent findings regarding circumstances; the State that the claim was responded barred from habeas review because the issue was procedurally never raised Robbins’s state court The federal proceedings. court ruled that Robbins’s claim that the returned inconsistent on its verdict had not been exhausted in findings penalty-phase yet remedies, state court. Because Robbins had not exhausted his state the federal court dismissed his for writ of habeas petition corpus. the federal court’s dismissal of his Rob-

Following petition, motion, bins filed a motion to his court. In that case this re-open he that the case involved a violation of his under the argued rights and Fourteenth Amendments based inconsis- Eighth tent and irreconcilable findings regarding mitigating claimed, forms, stances. he on Form 2A of the verdict Specifically, found that one jury unanimously mitigating’ existed; however, 2C, the on Form also unanimously motion, that this same did not exist. In his Robbins nfitigator that, this court’s stated intent to review the entire suggested despite error, record of his trial and for sentencing proceedings prejudicial such а review had not occurred because neither the court nor his counsel noticed this error. We the appointed alleged granted certiorari, motion to the case and issued writ of ‍‌​​​​​​​‌‌‌​​​‌​‌‌‌​​‌​‌‌‌​​‌​​​​‌‌‌​‌​​​​​‌​​‌‌‍reopen ordering that the record be with the verdict forms. supplemented original State, 556, Robbinsv. Ark. 353 114 S.W.3d 217 (2003) (RobbinsVI). The verdict forms and the briefs of the are now original parties 1 intervеning In an Rosenzweig curiam,we relieved as counsel and per appointed Jeff directing Lea Ellen Fowler to the IV, duties outlined Robbins her to abstract the perform 1) record and the assist court its determination as to whether errors raised in the trial prejudicial 16-91-113(a) (1987); court were Robbins,in to accordance with Ark. Code Ann. § 2) whether errors covered the outlinеd in Wicksv. 781, any plain by exceptions (1980), 3) safeguards occurred; had and whether other fundamental were (2000). Mowed. State v. Robbins, S.W.3d 500 us, able, before and we are now to determine whether error with to Robbin’s occurred sentencing. respect the of Robbins’s Following sentencing phase capital-murder trial, the verdict forms caused jury completed sentencing to be sentenced to death. The first Robbins Form completed circumstances, to off as an by pertaining aggravating checking the fact that the murder was committed in an aggravator “capital cruel or manner.”2 With especially depraved respect mitigating circumstances, also filled in Form 2. The verdict original 2A, forms indicate that the checked Form clearly whereby find that jurors “unanimously following mitigating existed: Robert A. Robbins has no stance^) (/) probably signifi- cant of criminal time (at the history prior activity murder).” Form 2B was left blank. Form 2C then as follows: provides

There was some evidence presented support following However, evidence, circumstance(s). considered this having that it jury unanimously agreed was insufficient to establish that the mitigating circumstance(s) existed. probably ( ) Robert A. Robbins has no criminal significant history prior (at the time of the activity murder).

The between the as either space parentheses appears though used “white-out” or an eraser to obliterate the check mark that was once there. This Form 2 instruction is to this appended opinion.

After Form then which complеted contains the conclusions of the following jury:

(a)(/) The State has a reasonable proved beyond doubt one or more circumstances.

(If do not you (a), to check then unanimously agree paragraph (b) (c) and sentence Robert A. skip Robbins to life without imprisonment 4.) on Form parole (b)(/) outweigh beyond

doubt any circumstances found by any juror exist.

(If do not to check then you unanimously agree (b), paragraph (c) and sentence Robert A. Robbins to life skip imprisonment 4.) without on Form parole 2 The jury’s finding aggravator. facts of case of this For a clearly supported discussion of those see facts, V, Robbins 342 Ark. at 265-67. justify beyond circumstances

(c)(/) aggravating of death. doubt a sentence then (c), to check paragraph do not (If you unanimously agree without A. Robbins to life imprisonment sеntence Robert 4.) on Form parole each of the above three boxes. checked

The jury clearly relief, 322 Ark. relies on Willet For Robbins heavily Willett, In the 937 (1995). jurors unanimously ex- three circumstances found and checked mitigating probably 2C, Fiowever, time of the murder. jurors isted at the circumstances, three but then unani- checked the same found and circumstancеs. In that were not mously they mitigating agreed harmless, that such error was to State’s argument response and confirmed in court orally “because jurors open appeared verdicts,” this court first with Willett their death-sentence agreed Willett, A and of Form 2 are exclusive. that subsections C mutually at The court then held as follows: 322 Ark. 628. are somewhat inclined to concludе that error We First, in Form 2 was harmless for three reasons. “Form completing

— Conclusions,” the verdict form to pertaining weighing circumstances, concluded that jurors aggravating mitigating reasonable aggravating outweighed beyond to by juror doubt circumstance found exist. any mitigating any Second, also in Form the concluded the circum stance a reasonable doubt the death senten justified beyond contends, Third, ce. as the state confirmed court jurors open death ‍‌​​​​​​​‌‌‌​​​‌​‌‌‌​​‌​‌‌‌​​‌​​​​‌‌‌​‌​​​​​‌​​‌‌‍injection two verdicts of lethal were indeed their by verdicts.Therefore, even if we assume the concluded in Form 2 existed, that the three we circumstances could mitigating probably conclude, on the basis of Form that did not they outweigh However, circumstance. we are not aware of author any that of a harmless error ity application analysis permits Carolina, circumstances. See v. South 476 U.S. 1 mitigating Skipper errors (indicating relating mitigating Moreover, standard). are under this court can prejudicial per form the harmless error in Ark. Ann. 5-4-603(d) Code analysis 1993)3 if the found no circumstances. (Repl. only Greene, record, this it is 878 S.W.2d384. On discernwhеtherthe circumstances. we any mitigating Therefore, found reversethe ... sentence deathand remand resentencing. [of\ for 5-4-603(d) is now in the Section volume. Replacement Id. at 628 added). (emphasis court, State, This in v. 947 S.W.2d Jones retreated from (1997), Willett’s of subsequently interpretation Willett, This court in clarified its in Skipper. holding stating Jones

that the of “went the parenthetical explanation Skipper beyond actual submitted case.” In also holding Jones, jury forms, verdict but there the confusion was between conflicting 2B, Form 2B and Form On 2C. Form had indicated that jury one or more of the believed that five circum jurors mitigating existed, stances but did not probably they unanimously agree 2C, those circumstances existed. On mitigating probably factors, checked оff three of the same jury that there was indicating some evidence presented circumstances support' mitigating offered, but the that the jury evidence was unanimously agreed insufficient to establish that the circumstances mitigating probably that, Willett, existed. The court held unlike it was not Jones to determine whether found any mitigating circumstances; three, had found as indicatеd jurors on Form 2A, and these did not conflict in with the any way confusing circumstances checked off on Forms 2B and 2C. 329 Ark. at Jones, 69-70. court further took the opportunity Jones our of Ark. Code Ann. “clarify previous 5-4- interpretations §

603(d) which 1997)],” as follows: [(Repl. provides sentence, (d) On review appellate of a death theArkansas if Court that the Supreme erredin existence finding аny finds of circumstanceor aggravating reasonand the for if found circumstances, no Arkansas Court Supreme shallconduct a harmless error review of the defendant’s death sentence.The Arkansas Court Supreme shall conduct this harmless error review by: that the circumstance Determining remaining aggravating doubt;

or circumstancesexist beyond (2) Determining remaining circumstance or circumstances justify sentence of death beyond a reasonable doubt. In (Emphasis added.) 5-4-603 court wrote readdressing (d), Jones

the following: We have this previously interpreted allow us to provision conduct a harmless-error if the analysisonly no mitigat- State, v. Ark. 878 S.W.2d 384 circumstances. Greene ing 943 (1996)]. (1994); Kemp [324 revealsthat it when However, applies thisprovision a plain readingof exists.There that an finding makesan error a set The statute prescribes in this case. simply was no such error It does a harmless-erroranalysis. wherethiscourtmust engage parameters not us harmless-error in othersituations. conducting analysis preclude from 329 Ark. at 71 added). (emphasis Jones, the to citation to With Willetts Skipper, respect Jones that, that the rule in we agreе Skipper court also explained “[w]hile from evidence of relevant that the exclusion mitigating provides harmless, we do not read be can never the consideration jury’s the of a harmless-error analysis Skipper preclude application evidence.” errors to the consideration of that Jones, relating jury’s 329 Ark. at 70. State,

We further note our in v. 302 Wainwright opinion which the court found 790 S.W.2d (1990), Jones a In this court was with be presented controlling. Wainwright, form, the one verdict had unanimously situation in which on jury, found a factor existed in the fact that did mitigating Wainwright arrested; form, not when another it that resist found this same In factor did not exist. the this court mitigating resolving question, wrote the following: factor, it was the have been inconsistent on this jury may

Although three circumstances that unanimously finding aggravating clear the murder. On the other at the time committed existed appellant hand, the even the benefit giving appellant mitigating above, circumstance discussed determined that two jury ‍‌​​​​​​​‌‌‌​​​‌​‌‌‌​​‌​‌‌‌​​‌​​​​‌‌‌​‌​​​​​‌​​‌‌‍only each circumstances existed. individual mitigating Upon polling, he or she had voted for the death Obvi- penalty. stated that juror jury outweighed found ously, aggravating factors, those and the trial court was correct in so mitigating holding. 302 Ark. at 387. Circuit Court Eighth

Wainwright, Appeals decision, affirmed this inconsistent holding ultimately not and therefore did not rise to were or arbitrary findings capricious, violation, Amendment where the an or Fourteenth Eighth that three a reason found outweighed beyond aggravators specifically Lockhart, circumstances. v. able doubt all See mitigating Wainwright denied, 968 (1996). F.3d 1226 cert. 519 U.S. (8th Or.), conclude that We both are con Wainwright Jones here. there was an Although trolling apparently unexplained form, “white-out” one verdict even if we resolve the partial “white-out” in Robbins’s favor and conclude that the exist, one factor to nevertheless mitigating unanimously existed, one concluded that circumstanсe that aggravating circumstance a reasonable doubt aggravating beyond outweighed existed, factor found to have and that mitigating aggravat circumstance reasonable doubt a sentence of ing justified beyond death. To death this court that a has held impose penalty, need that one only unanimously agree State, exists. Reams v. 322 Ark. 909 S.W.2d 324 (1995); State, v. 319 Ark. 893 S.W.2d 331 seealso Dаnsby (1995); Fudge death (2000) (affirming sentence where found one factor and one miti circumstance, and concluded gating justified aggravator a reasonable doubt beyond a sentence of Whether death). not, found the jurors circumstance to or exist they nevertheless concluded that a death sentence was unanimously appropriate. that,

We also hastеn out point following reading verdict, of the the trial court the verdict jurors, polled reading form aloud as follows:

Court: And form two on or mitigating circumstance circum-

stances, are: findings [the]

We find unanimously that following mitigating or stance existed:That Robert A. probably Rob- has no bins of significanthistory prior criminal at the activity murder, time signed by foreman. again unanimous, each Are of these in form one and two findings all that is twelve of you agree? heads (Nodding down.) up

Jurors: verdict, After the court reading asked the if again “each of jurors — will, of own you free execute and individually, your sign place form four?” The said “Yes.” If there was your signature jurors doubt as to what the to mark intended on Form that doubt jurors was resolved answers'to trial court. Because by jurors that had found o'ne cirсumstance agreed they unanimously exist, but the miti- outweighed doubt, we must conclude that any gator beyond pur- in the inconsistencies by ported completing error, and we affirmRobbins’s death sentence. amounted harmless Thornton, dissents. J., that it Because I find Justice, dissenting. Ray Thornton,

is to determine whether jury complied 5-4-603 in its 1997) with Ark. Code Ann. (Repl. imposition

[356 I that the in-court and because do not believe death penalty, the verdict cure the inconsistencies in sufficient to statements were forms, dissent. I respectfully 5-4-603 Annotated provides:

Arkansas Code § if it unanimously of death a sentence shall (a) impose The jury that: written findings returns doubt; a reasonable ‍‌​​​​​​​‌‌‌​​​‌​‌‌‌​​‌​‌‌‌​​‌​​​​‌‌‌​‌​​​​​‌​​‌‌‍circumstancesexist beyond (1) Aggravating and a reasonable outweigh beyond circumstances (2) Aggravating exist;and circumstancesfound to

doubt allmitigating of death a (3) justify beyond sentence Aggravating reasonabledoubt.

Id. us, before inconsistencies appear

In the case now Rob- of Robert the sentencing forms used phase verdict during to determine make it inconsistencies bins’s trial. These in Ark. articulated whether procedure performed 1 shows that the Ann. 5-4-603. Verdict Code Specifically, § a reasonable doubt one found that the State beyond proved Form 2 A shows that the Verdict circumstance. one circumstance existed. found that mitigating unanimously that factor or Form A state “any instructions accompanying should not be checked factors checked in this section again any However, other section.” instructions on Form disregarding A, that Form C inconsistently by finding completed insufficient evidence to there was support that an unknown 2 A. While it stance found on Form appears an effort to resolve this inconsistency by applying made person C,2 no checkmark shown on Form across white-out part or the the white-out made to determine who effort was applied renders the This the white-out. inconsistency reason for applying Form 3 mirrors Verdict conclusions reached on Form suspect. articulated in Ark. Code Ann. 5-4-603 requires language an circumstance has determine: (1) doubt; a reasonable aggravat- established been beyond

235-B ing outweighs beyond doubt miti- found; and that the gating (3) stance a reasonable doubt a justifies beyond sentence of death. Because we not know do whether the jury any mitigating circumstanсes, it is to determine whether the jury in the properly engaged weighing process Code required by Ann. 5-4-603. Without a record that the demonstrating jury properly weighed the miti- against circumstances, I believe that gating we cannot affirm the imposi- tion of Mr. Robbins’s death sentence. majority suggests inconsistencies in the verdict

forms can be corrected in-court by affirmation of their jury’s This is findings. because the analysis misplaced as jury’s findings in court stated were and inconsistent with the verdict incomplete forms. After forms, inconsistent verdict returning was jury asked in court to affirm that open found one they unanimously circumstance. The trial court did not ask the jury whether Form 2 C had been explain checked. Additionally, trial court did not ask the whether it had white-out to applied Instead, Form 2 C. the trial court asked the to affirm that the on Forms one and two were findings unanimous. By responding affirmative, was its inconsistent affirming findings Thus, Section A and C.2 in-court statements did not jury’s cure the forms, discussed flaws in the verdict previously I cannot that these flaws should be agree treated as harmless errors. I am in the

Fundamentally, view unwilling join majority’s that a in-court forms answers to verdiсt questions regarding can be used to the actual modify on the verdict forms. If findings we substitutions, allow such verdict forms would be rendered and the of the meaningless room would sanctity be jeopar- dized. conclusion,

In I am forced to dissent from majority because the record in opinion this case does not allow me to determine whether the met the statutorily-required weighing bеfore the death process sentence imposing Mr. Robbins. upon Because of the obvious of the I finality punishment imposed, would that this case be remanded for a require new sentencing Robbins, trial. SeeState v. 339 Ark. 5 S.W.3d 51 (1999); Gregg 2909, 49 L. Ed.2d 859 (1976); 96 S. Ct. 428 U.S. v. Georgia, State, 5 S.W.3d 418 339 Ark. Liberties Union Civil American (all S.W.2d 839 Franz v. (1999); criminal are different from other cases that death-penalty holding cases, imposed). due to the finality punishment dissent.

I respectfully v. Dr. Robert Regional D. SCAMARDO JAGGERS; Sparks June Center; and Insurance Medical Steadfast Company 03-765 Court of Arkansas

Supreme 26, 2004 delivered February Opinion ‍‌​​​​​​​‌‌‌​​​‌​‌‌‌​​‌​‌‌‌​​‌​​​​‌‌‌​‌​​​​​‌​​‌‌‍denied 1, 2004.] [Rehearing April

Case Details

Case Name: Robbins v. State

Court Name: Supreme Court of Arkansas

Date Published: Feb 26, 2004

Citation: 149 S.W.3d 871

Docket Number: CR 98-1394

Court Abbreviation: Ark.