The opinion
Steele Hays, Justice, concurring. I take exception to that part of the majority opinion that in the penalty phase of the trial the evidence that the accused has committed other crimes must be substantial. We have said categorically that we do not require the same degree of proof that an aggravating or mitigating circumstance exists as would be required to sustain a conviction, and if there is any evidence of aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Miller v. State, 269 Ark. 341 , 605 S.W.2d 430 (1980). The jury must still determine beyond a reasonable doubt that the accused did commit the aggravating circumstance with which he is charged. Ark. Stat. Ann. § 41-1303 (Repl. 1977).
Moreover, we have held that even in the guilt phase of the trial, where the rules of evidence are more strict, the state can offer independent evidence that a victim identified a suspect as the offender. Martin v. State, 272 Ark. 376 , 614 S.W.2d 512 (1981). Here, the majority opinion disallows that evidence in the penalty phase of the trial, where the rules of evidence are more relaxed.