holding the trial judge’s statement that it was sentencing the defendant “in keeping with the verdict and recommendation of the jury” did not indicate the failure of the court to exercise discretion
How later courts described this case
- holding the trial judge’s statement that it was sentencing the defendant “in keeping with the verdict and recommendation of the jury” did not indicate the failure of the court to exercise discretion
- threat that the defendant would “gut her like a deer” relevant in charge of aggravated assault from firing a gun
Written by the judges who cited it.
The opinion
David Newbern, Justice, dissenting. The separation of powers doctrine requires that this conviction be reversed and the case be remanded for resentencing. The Constitution of Arkansas provides, “No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art. 4, § 2. The statute which allows a jury to be instructed with respect to possibilities of parole permits the judiciary to impinge upon the executive parole function and is thus unconstitutional.
In Scarber v. State, 226 Ark. 503 , 291 S.W.2d 241 (1955), jurors inquired of the Judge whether the defendant could “get out” if he were given a life sentence. The Judge responded that clemency is strictly an executive function not to be considered by them. We affirmed on the basis that the remark by the Judge was “complete and correct.” Although we did not mention the Constitution in Andrews v. State, 251 Ark. 279 , 472 S.W.2d 86 (1971), our opinion, authored by Chief Justice Harris, offered a clear allusion to the separation of powers doctrine as follows:
This [parole information] is certainly not a question, the answer to which must be known, before the members of the jury can discharge their duty. Their duty is to determine, within the Emits of the statute, the punishment that should be meted out for the crime that has been committed, and such judgment should not be influenced by any event that might occur at some time in the future. The subject matter is entirely alien to a judicial proceeding since it is handled entirely by another department of government, the executive. [Emphasis supplied.]
We reaffirmed the Andrews decision in Bush v. State, 261 Ark. 577 , 550 S.W.2d 175 (1977), a case decided after our Criminal Code of 1975 had come into effect. In the Bush decision, the issue became most serious in a capital murder case. The jurors were “hopelessly” deadlocked. The judge, at the instance of the parties, committed the mistake of speaking privately with the jurors and explaining, in response to a juror’s question, the Governor’s pardoning power. He reported that he told the jurors “that the legislature could not take away the governor’s constitutional pardoning power.” The jurors within five minutes thereafter returned a sentence of life without parole. Justice George Rose Smith wrote:
The motion for a new trial should unquestionably have been granted. . . . That the discussion took place at all must be regarded as prejudicial error, for, despite some inconsistencies in our earlier opinions, we made it unmistakably plain in Andrews v. State, . . . that jurors are not concerned with the parole system and consequently should not be given even completely accurate information upon that subject. Here it is a reasonable inference that the jurors would not have returned their actual verdict had they not been given [the Judge’s] explanation of the governor’s pardoning power.
Courts of other jurisdictions in which sentences have been recommended or passed upon by juries have also disapproved making the parole or clemency possibilities a factor in sentencing. References to the separation of powers doctrine have been specific. In Kemp v. State, 632 P.2d 1239 (Okla. Cr. App. 1981), the Oklahoma Court of Criminal Appeals approved the following language uttered by a trial judge upon being asked by jurors about the parole rules in that state:
BY THE COURT: . . . The things you are asking in your question, I assure you if they were proper considerations, I would have instructed you about them. I have given you everything that is proper for you to consider. Let me just state a little bit further that our system of government divides the government into three separate functions.
One is the executive, the other is the legislative, and the other is the judiciary. The question you are asking is proper for the executive branch of government, not the judiciary.
All you need do is, in this stage of the proceedings, fix what you perceive to be a proper sentence. Let all other considerations remain to the executive later. Do what you think is right and forget about it, please. With that in mind, please retire again and let us know when you have a verdict.
In Thompson v. State, 47 S.E.2d 54 (Ga. 1948), jurors deliberating a capital murder sentence returned to the courtroom and asked about eligibility for parole in the event of a life sentence. The Judge replied that he did not know the current parole board rules, and he said further that the rules could change at any time, so it might be useless for the jurors to know them. From the opinion of the Georgia Supreme Court it appears that the Georgia law was that if the jurors returned a guilty verdict with a recommendation of mercy a life sentence might be imposed. Without such a recommendation the sentence would be death. When the question was asked, the jurors were divided on the sentence. After the question was answered, they agreed on a guilty verdict without a recommendation of mercy. In reversing the conviction, the Court wrote:
Under our constitutional form of government, the legislative, judicial, and executive powers shall forever remain separate and distinct. Constitution, art. 1, sec. 1, par. 23. It is therefore improper for a judge in the trial of a person charged with murder to state or intimate what action could be taken in the future by a separate and distinct branch of the government in regard to the determination of whether or not a person sentenced to life imprisonment should be granted freedom and be permitted to come in contact with society. Where, as in this case a question is propounded by a juror that involves the functions of a separate and distinct branch of the government, the jury should be told that such matters can not be the subject of any instruction by the court. The instruction given was prejudicial and operated as an illegal influence against a recommendation for mercy by the jury, and a new trial must be granted.
Mr. Teague’s argument obviously cannot be answered by a mere reference to Ark. Code Ann. § 16-97-103 (1) (Supp. 1995). The statute, of course, may not provide a procedure that violates the Constitution.
In conclusion, it must be pointed out that the majority opinion uses the phrase “truth in sentencing” without explaining what it means. If it is suggested that a jury can, by being told of the parole and clemency possibilities, better predict how much time a defendant will spend in prison and tailor a sentence with those functions in mind, then the majority may be inspired by the phrase, but it is in fact badly misled. An attempt to reach a conclusion, based on such information, as to the time an inmate will be incarcerated is an exercise in speculation. As the majority would surely concede, one cannot predict how much “good time” a prisoner may earn any better than one can predict how a prisoner will behave in prison. One cannot predict how a parole board might react to the prisoner when parole consideration is appropriate. Nor can one predict the information the parole board might have before it when that time comes.
Our earlier cases got it right, both from the practical and the legal points of view. Now that we have, for the first time, an opportunity to resolve this question as a constitutional matter, we should recognize the obvious overlap of powers permitted by § 16-97-103(1) and hold it to be in violation of Ark. Const, art. 4, §2.
I respectfully dissent.
Thornton, J., joins in this dissent.