stating "the evidence offered must be probative of some issue to be properly considered in the penalty phase"
How later courts described this case
- stating "the evidence offered must be probative of some issue to be properly considered in the penalty phase"
Written by the judges who cited it.
The opinion
John I. Purtle, Justice, concurring. I concur with the result but would also instruct the trial court on the matter of selecting a “death qualified” trial jury and on matters relating to the sentencing phase at the next trial.
First, it is, in my opinion, a stubborn, useless and expensive act to stand on the majority opinion as written in Rector v. State, 280 Ark. 385 , 659 S.W.2d 168 (1983). The Eighth Circuit Court of Appeals has soundly pointed out the infirmities of our Rector opinion in Grigsby v. Mabry, 758 F.2d 226 (1985). Although there is a possibility the United States Supreme Court will reverse Grigsby, there is the possibility it will affirm. In the meantime we should follow Grigsby not only because it is the law, but also because it is fair and just. I feel there is very little difference in this court’s real standing on “death qualified” juries and the criteria established in Grigsby.
Both Rector and Grigsby have common language in part and both rely on some of the same authorities. For example both quote from Needham v. State, 215 Ark. 935 , 224 S.W.2d 785 (1949). Grigsby cited with approval the concurring opinion in Rector where it was stated:
The majority correctly states that persons who are unalterably opposed to the imposition of the death penalty should be excluded and I agree. I think Witherspoon is in accord with this view. The mistake made in some trial courts is in excluding persons who have moral or religious scruples against the death penalty but who would agree to impose it if the law and the circumstances warrant it in the case being tried. Witherspoon never intended to exclude this type juror. Neither did it indicate that only those who favored the death penalty should comprise trial juries. I think the correct procedure on this controversial issue lies somewhere between excluding prospective jurors who have scruples against the death sentence and including only those who have no scruples against imposing such a penalty.
I have never thought that all or even most people who favor the death penalty are barbarians in modern society. However, I do feel that a jury composed of only such persons is not representative of any community. Neither would a jury composed only of those having scruples against the death penalty represent the community. The selection of jurors should not favor the accused nor should it favor the state. A properly selected jury enters upon its duties slanted toward neither side. Thus selected, it would not be proper to refer to the jury as a death qualified one.
I fully believe the results of the polygraph test of the appellant should be allowed in the penalty phase of the trial. There can be no doubt that the present law allows the use of such evidence at the sentencing stage of the trial. Ark. Stat. Ann. § 41-1301 (4) (Repl. 1977) reads in part:
Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trial of criminal matters. . . .
We held, in reversing the conviction in Hobbs v. State, 273 Ark. 125 , 617 S.W.2d 347 (1981), that in the sentencing phase, evidence of mitigating circumstances should be admitted if it is made under oath and the state has an opportunity to cross examine the witness. Both requirements are met in the case here under review. We stated in Ford v. State, 276 Ark. 98 , 633 S.W.2d 3 (1982): “If there is any evidence of aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury.”