*1 confer on the Board to Because the Act does not authority itself, of the Act including presumptive change any portion business, I must dissent from cost of major- doing respectfully do that the Board has the broad so. ity’s holding power v. STATE of Arkansas Robert ROBBINS CR Court Arkansas Delivered June denied rehearing September
[Petition 2003.*] * JJ., J., participating. Glaze and dissent. Imber, Corbin, *2 Lambert, for Craig appellant. Gen., Weber, Gen.,
Mark A. Pryor, Att’y Ass’t by: Jeffrey Att’y for appellee. L. Petitioner Robert Robbins Brown, Justice. petitions his case in which this Robert
court affirmed his conviction for murder and affirmed his capital his case is that an His basis for reopening death sentence. and that forms sentencing occurred in the jury’s completion court, S.W.2d Willett a decision of further He argues resentencing. 937 (1995), requires error in the missed the jury’s completion court mistakenly which was in the direct pre- forms appeal sentencing this court and not by amicus counsel appointed by pared See Robbinsv. for Robbins. retained or counsel appointed 262, 27 419 (2000). are killed his ex-girlfriend, Bethany The facts that Robbins her. The White, in November by strangling suffocating murder and the death sought him with pen- State charged capital *3 trial. to stand circuit court him competent The alty. adjudged at trial the assistance of court- himself with Robbins represented at and and all times admitted counsel standby guilt appointed himself. He even to the death for plea- sought penalty attempted death The convicted him of for the capital bargain penalty. trial, and, the returned murder the sentencing following phase death sentence. in a
This case has resulted contorted and history multiple court. Ini- There have been five reviews appeals. appellate waive his his conviction Robbins tially, sought appeal right court, held and to this This that Robbins sentence court. initially, State, to an see v. had waived his Robbins successfully right appeal, 380, and curiam)(RobbinsI), 335 Ark. 985 293 (1998) S.W.2d (per State, relief, Rule see v. to seek 37 Robbins right postconviction 377, curiam) II). 336 296 (1999) Ark. 985 S.W.2d (Robbins (per next and asked Robbins’s mother then filed a as his friend petition mandate, execution, for and for this court to recall the a stay the on all re-examination of the case. The State opposed fronts, lack and that mother’s of standing, including argued State, 181, 754 839 which Franz v. 296 Ark. S.W.2d (1988), cases, in death con- declined to require mandatory appeals penalty execution, mandate, court trolled. This recalled stayed State, v. ordered from the State Robbins. SeeRobbins briefing 227, III). 987 curiam) (Robbins 337 Ark. S.W.2d 709 (per of the we overruled After the arguments parties, considering State, an Franz and held that in caseswhere v. appel- supra, part an it was conduct lant seeks the this court’s duty penalty, 559 of the record to determine review whether independent prejudi cial occurred under Arkansas Court Rule 4-3 (h), trial, violations occurred see v. whether Wicks Wicks during State, S.W.2d whether “funda (1980), mental were trial. See Robbins safeguards” place during (RobbinsIV). To court amicus counsel discharge duty, appointed record our review the and assist this review. See id.1 filed Amicuscounsel a brief this court’s direction. pursuant Robbins (2000) (Robbins errors, errors, this court held that no or V), Rule Wicks (h) errors “other fundamental occurred dur- safeguards” implicating the trial. This court affirmed Robbins’s murder con- ing capital viction and death sentence and dissolved of execution. stay V, time, Robbins Robbins first began, contest Following his death sentence. Fie counsel to habeas engaged legal pursue relief federal district court. Robbins in the subse- corpus argued federal on his habeas quent that proceeding corpus petition in the verdict forms violated inconsistency his constitutional jury’s under this court’s decision in rights Willett supra. that had exhausted his state responded remedies by not that the mandate in pursuing petition rehearing issued had in the additional review. The foreclosing federal district court dismissed Robbins’s habeas corpuspetition without on the had basis prejudice exhausted his *4 state remedies. the federal district court noted that Specifically, state courts had not examined Robbins’s inconsistency-in-the- verdict-forms under Willett v. he argument that supra, remedies, his state if “may pursue any.” matter, dismissal of the federal Following habeas Rob- corpus bins his filed his case in this petition court. reopen ques- tion of the whether this has this case authority reopen not embraces this court’s but its inherent only jurisdiction author- Robbins ity. first that our in argues Robbins holding requires IV. that the court He case. contends that the of meaning 1 This court Ark. R. P. —Crim. 10, which establishes subsequently adopted App. for automatic review death cases. In Re: procedure Amendment mandatory appeals Rule W (2001). Arkansas Rules Criminal, Appellate Appx. Procedure— of defendant seeks a criminal where that cases IV is himself, an court conducts independent our for
death penalty trial. error” occurred during if “fundamental to determine review consti- error, a violation Robbins’s an such He that just argues in this case. It occurred supra, under Willett tutional rights in Rob- matter, claims, was overlooked that this error he does maintains, it he error is fundamental magnitude, If the bins V. an down our handing fundamental by less not become any does cites this court Cloird it. Robbins not address that did opinion held we in which (2002), with the trial court jurisdiction can reinvest that error coramnobis. the doctrine of under errors address fundamental to reinvest itself contends, Thus, authority this court has he error. fundamental address any with jurisdiction with both a argument answers procedural-bar The State that the out The State points argument. implicit-holding and that no has since issued V long mandate from Robbins court’s that a further filed. The State urges was for rehearing petition for vehicle is the only procedural for rehearing proper decision. Because of this court’s the validity questioning claims, he has the State the court rehearing, failed to petition at late date. a Willett error to assert waived right that in its argument also contends The State implicit-holding indicates issue V on jury-forms court’s silence Robbins court, indeed, in this court’s forms considered that this The State emphasizes review and found no Willett problem. full a neutral amicusattorney V was aided by that our review in Robbins review, 4-3(h) to Rule in this case was subjected and the record review, This error” analysis. high and a “fundamental a Wicks undoubtedly encompassed State urges, level scrutiny, address. After wants this court to that Robbins now precise that the the State concludes opinion’s such searching analysis, did not that this court is itself as to a Willett issue proof silence oral in the case. At argu- was such issue present believe ment, admitted that for the State implicit-holding counsel that the court and in federal district was not made argument issue was that the Willett procedurally sole State’s argument it in a rehearing. *5 failure to raise barred due to
561 There is no but that the death is a question penalty that demands attention to unique punishment unique procedural The United States Court has made that safeguards. 320, See, clear. Caldwellv. 472 U.S. abundantly e.g., Mississippi, Court has said that (1985) (“This under the repeatedly Eighth Amendment ‘the difference of death all from other qualitative a punishments requires correspondingly greater degree scrutiny of the determination.’”) capital sentencing (quoting California Ramos, 992, U.S. Zant (1983)); U.S. Stephens, 862, 884-885 there is a (1983) (“pB]ecause difference qualitative between death and other form permissible punishment, is a there difference in the need for in the corresponding reliability determination that death is in a appropriate punishment spe Carolina, cific case.”) Woodsonv. omitted); North (quotations 280, U.S. 305 (1976) of death is dif (“[T]he penalty qualitatively Death, a ferent from sentence of however imprisonment, long. its differs more from life than a finality, imprisonment 100-year term differs from one of or prison two.”); only year Eddings Oklahoma, 104, 455 U.S. 118 (O’Connor, J.,. concurring) Court has (“[T]his measures to ensure that extraordinary gone sentenced to be executed is afforded that will prisoner process as much as is guarantee, that the sentence was possible, humanly whim, out of or imposed passion, mistake.”). prejudice, court, on,
This
voiced its belief in the “humane
early
cases,
to criminal
principle applicable
general
especially
involved,”
those where life is
and declined to exalt form over sub
stance when
State,
with the death
Bivens v.
dealing
penalty.
455,
457 (1850). More
this court has
recently,
set
repeatedly
aside strict adherence to
rules
connection with
procedural
relief out of concern
postconviction
for fairness in death-penalty
See,
520,
cases.
Sanders v.
352 Ark.
e.g.,
in death penalty
for
of
order
findings
an insufficient
remanding
specific
scrutiny;
State,
v.
each
raised);
of law on
issue
and conclusions
fact
Jackson
595,
619,
a
613,
that
(2001) (holding
37 S.W.3d
599
343 Ark.
Rule
relief was late
for
37
defendant whose petition
capital
a
of
“breakdown in
State-provided postconviction
claims
to have his ineffective-assistance
was allowed
proceeding”
717,
State,
We 12, 2002, in order to in a death case on allow ings September to demonstrate a defendant’s actual inno- DNA and other testing 2001, to Act 1780 now codified at Ark. Code cence pursuant Echols v. Ann. 16-112-201 2001). through (Supp. § 42, We took this even (2002). step and death sentence had been affirmed six conviction though 917, Echolsv. earlier on December 1996. years 509 (1996). this we examine Robbins’s Petition to backdrop, Against V, which Robbins’s Our decision in Robbins affirmed Reopen. sentence, was handed down on October murder and capital 5, 2000. Almost 2000. The mandate was issued October later, this his case and two years petitions that a was made court in failing recognize mistake alleges in its of Verdict Form was inconsistent completion which deals with circumstances. Robbins’s counsel mitigating to his Petition attaches what the inconsistent forms purport Robbins, a death this court reversed Reopen. According sentence remanded resentencing precisely 2 in in Verdict Form Willett same inconsistency supra. holds firm to its does not but respond argument Robbins’s relief is barred at belief that requested procedurally or, late date that this court decided the alternatively, implicidy *7 in Rule 4-3 review in Robbins V. (h) issue our mandate,
The
of an
recall its
if
power
appellate
it,
circumstances warrant
is
both
the
in federal courts
recognized
See,
and state
the
courts across
Calderonv.
country.
e.g.,
Thomp
son,
Court,
court, and the Court concluded that a mandate anwas recalling abuse discretion in a habeascase unless the court of acted appeals a to “avoid as defined our habeas miscarriage justice corpus 523 U.S. at The jurisprudence.” 558. Sixth Circuit Court of has further a justified mandate recall in Appeals part “pursuant our inherent of the power protect integrity judicial process within this Circuit.” 10 F.3d Demjanjuk Petrovsky, Cir. We (6th 1993). that the federal agree standard of is review for our appropriate usage.
We a mandate to a case. equate recalling reopening mandate, This court has rule to the recall aof relating Sup. R. (d), Ct. but the rule been used has it is sparingly. Typically, invoked in where a cases seeks to United States party has issued. after the mandate for a writ certiorari Court case, a mandate refused to recall recent In one fairly on the Court issued the United States Supreme opinion
after defendant we did so because the but identical constitutional point, which this alternative state ground had never challenged Earl, 271, 984 its decision. See State court based The State is incorrect curiam). arguing (per this court to there no reopen is precedent issued, where the writ of in cases after mandate has except court recalled is In this error coramnobis involved. very execution, mandate, December stayed issued on Robbins III. to brief certain issues. See ordered parties recall a mandate undeniable fact is this court will case in circumstances. extraordinary *8 Thus, is whether this court the issue confronting in the instant case. Stated differ circumstances exist extraordinary mistake was this case to decide whether a will we reopen endy, V, in because an issue was overlooked made allegedly that we have reversible error? Robbins argues which would been error in Wil the issue he now raises to fundamental considered State, that death sentence and we reversed Willett’s lett supra, He contends that what was funda based on that issue. precise less because this in V is no fundamental mental error court, counsel, failed or with the of amicus to recognize assistance address the issue that opinion. that we set aside the mandate
We have determined
will
add that we
the case
address this issue. We hasten to
and
to
the
circumstances of this
are
so
because of
solely
doing
unique
has
cited
this
is first
fact that a decision
been
case. There
the
court,
is
all fours
with the
Willett v.
which
legally
supra,
it is
in the instant case. Whether
similar factually
issue presented
is,
the fact that the
has
be determined. There
secondly,
yet
dismissed Robbins’s habeas
federal district court
corpus petition
in state
There is
this issue had not been addressed
court.
has
the Willett issue
been
no
whether
argument concerning
is,
court. It has not been. There
addressed
this
lastly,
by
expressly
is
fact
this
a death case where heightened scrutiny
that
is
this
sui
These circumstances combine
make
case
required.
kind,
Indeed, we
case
be one of a
not to
consider this
generis.
sum,
this
is cited to
where a recent case
be repeated.
was handed down
to Robbins V
which is
which
prior
directly
sentence,
to Robbins’s death
the issue must be reviewed.
contrary
also
are
mindful of the fact that it is now incumbent on
We
to do a
review in
states
state-court
all
comprehensive
cases in order to eliminate the need for
federal habeas
multiple
Arkansas Rule
Criminal Procedure 37.5
corpusproceedings.
this court
evolved from Act 925 of
now
by
adopted
codified at Ark.
Ann.
16-91-201 to 206
Code
1999),
(Supp.
§§
in favor of
state-
recognizes
policy
thorough
expressly
court review. See Echols
Wooten
supra;
691,
stances
this case are
and that we are
the man-
unique
recalling
date and
this death case
because of
reopening
solely
(1)
alleged
verdict form
in the
comparable
Willett
the fed-
deficiency
eral district court’s dismissal
federal habeas
corpuspetition
issue,
order to
state courts the
give
opportunity
explore
the enhanced
we
in death
scrutiny
cases.
require
*9
There is one other matter of concern to this court.
Verdict Forms on
original
which were
sentencing,
completed
are not in the
by
record.
jury,
of those verdict
Only copies
We, therefore,
forms are included.
issue writ of certiorariand
order that the record in this case be
with the
supplemented
origi
nal Verdict
Forms
and 3. See
v.
Anderson
Skipper 1997). 5-4-603 (d) (Repl. § issued. Certiorari to Writ granted.
Motion Reopen ordered. Rebriefing JJ., Imber, dissent.
Glaze and J., Corbin, not participating.
T I realize majority- Justice, dissenting. Glaze, om issue to resolve a belated in this matter is trying one, Robbins; however, he his if has remedy, now raised being by has before us six times. the federal courts. This case been is in Robbins, it 419 (2000), appeared There, him final this court gave that Robbins obtained a decision. sentence, his murder conviction and an automatic review of his and waived all of he confessed the murder even though An abbreviated that he wanted the death penalty. rights, stating this case of the evidence is understand why review helpful us. remains before Beth- former
Robbins murdered his girlfriend, indisputably White, manner. He cruel and depraved especially weeks, wrote his murder for several and plans planned his drove from on Robbins journal Fayetteville computer. kept and the time and to encounter chose place Bethany, Jonesboro she alone. When Bethany to kill when (her home) Bethany house, he inside. Rob- him in her forced way refused allow He her until his hands turned blue. bins hit strangled Bethany Because Robbins was broke neck it. Bethany’s twisting then death, her he took a kitchen knife still uncertain of attempted Next, her brains.” her nasal to “scramble to thrust it up passage it mouth duct over Bethany’s Robbins took wrapped tape enter; nose, later could the medical examiner so no air opined succeeded in suffocating Bethany. Robbins had a deco- went found After Bethany, upstairs, killing sword, he tried and returned downstairs where rative or novelty heart, and would her but the sword bent thrust sword through then cookie her fortune chest. placed penetrate read, will soon have an chest that “You opportunity Bethany’s *10 Robbins, while smoking a to your make change advantage.” soda, a remained to sure was dead. He then drinking Bethany for her to find. left mother Bethany’s body Robbins chose waive his to court- subsequendy right counsel, so he could se and seek the death proceed pro appointed counsel, still The trial court Robbins penalty. assigned standby trial, even Robbins was found to stand though competent found he had the to choose between life and death. On capacity review, automatic and affirmed appeal, gave that, the trial court’s This court also held after an findings. analy- motions, sis of the adverse rulings objections, requests made under Ark. Ct. R. the record revealed 4-3(h), no Sup. prej- error; udicial nor did the record show Wicks to the exceptions rule in Arkansas that an for reversal will not be consid- argument ered in the absence of an appropriate contemporaneous objection in the trial court.
Sometime after this court’s decision Robbins’s affirming cap- sentence, ital-murder conviction and death Robbins had a change mind; he obtained counsel to this court’s decisions challenge for writ habeas in the filing petition federal district corpus states, court. As the the federal district court majority opinion dismissed Robbins’s until that court knew Robbins had petition remedies, exhausted his state remedies. Those in my opinion, were exhausted when Robbins chose not to file decision, in this court’s last rehearing Robbins v.
262,
Robbins fails to or case which suggest any pro- vides him the his case for right reconsideration of this court’s final decision after the court’s mandate was handed down. He refers to this court’s merely inherent but mentions authority, fact, no case law that our law is to the supports position. that, down, once this court’s mandate contrary is handed the dis- becomes final. See position Johnson Here, 951 (1995). failed to file simply timely petition rehearing. that, The if this court poses problem reopens issued, case after the mandate has like this will never end appeals convicted murderer will out that every he or she has point therefore, been denied a fundamental his or her case right, should be I court has tried agree. to nar- reopened. majority *11 case, so, but, in doing its decision reopen row scope a “funda- can be when reflects that reopened
its opinion However, is unfor- to exist. such language is shown mental error” is a term our “fundamental error” tunate and ambiguous do not recog- use to why they courts explain Arkansas appellate words, error” and “fundamental plain, error.” In other nize “plain the same. See are essentially Buckley and fourth third arguments S.W.3d 825 (rejecting fun- basis for “limited recognition Wicks suggested exceptions means error”). Perhaps, majority damental and plain error.” See the term “structural Reynolds e.g. employ to erroneous (failure object 331 (2000) Ark. 387. 18 S.W.3d trial on the defendant óf the instruction denied right jury jury murder must which a conviction first-degree elements upon 841 S.W.2d Calnan v. predicated); None- error”). trial constituted “structural (denial right theless, final that this court’s decision was I am of opinion I so would Rob- its mandate was issued in deny when it. bins’s motion
Imber, dissent. joins J., v. Michael HARMON
STATE of Arkansas CR of Arkansas Court 12, 2003 delivered
Opinion June