Robertson v. State

Darrell Hickman, Justice, concurring. I concur to update the history of our review of capital cases contained in Fretwell v. State, 289 Ark. 91 , 708 S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz and Van Denton v. State, 280 Ark. 190 , 655 S.W.2d 441 (1983) (Hickman, J., concurring).

Since Fretwell, we have reviewed the imposition of the death sentence in thirteen cases. We have upheld the death penalty in seven cases: Starr v. State, 297 Ark. 26 , 759 S.W.2d 535 (1988); Whitmore v. State, 296 Ark. 308 , 756 S.W.2d 890 (1988); Gardner v. State, 296 Ark. 41 , 754 S.W.2d 518 (1988); O’Rourke v. State, 295 Ark. 57 , 746 S.W.2d 52 (1988), petition for postconviction relief pending; Snell v. State, 290 Ark. 503 , 721 S.W.2d 628 (1986), cert. denied,_U.S__, 108 S.Ct. 202 (1987); Hill v. State, 289 Ark. 387 , 713 S.W.2d 233 , cert. denied, 479 U.S. 1101 , 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144 , 728 S.W.2d 510 (1987).

We also upheld the death penalty in the unusual case of Franz v. State, 296 Ark. 181 , 754 S.W.2d 839 (1988). Ronald Gene Simmons received the death penalty but waived his right to appeal his sentence. Franz attempted to bring an appeal as next friend. We determined Franz had no standing and affirmed Simmons’ competency to waive his appeal.

We have reversed and remanded the following cases in which the death penalty was imposed: Burnett v. State, 295 Ark. 401 , 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88 , 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421 , 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521 , 726 S.W.2d 653 (1987).

In Wilson v. State, 295 Ark. 682 , 751 S.W.2d 734 (1988), we found an error in the sentencing phase only. We vacated the death sentence and remanded to allow either the imposition of a life sentence or the impanelling of a new sentencing jury.

We also found error in the sentencing phase in Pickens v. State, 292 Ark. 362 , 730 S.W.2d 230 (1987). We had previously upheld Pickens’ death sentence, 261 Ark. 756 , 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909 (1978). But the Eighth Circuit reversed due to ineffective assistance of counsel. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). On retrial, Pickens received the death penalty again, but we found error and reversed.

None of the above cases have been presented on a second appeal, nor have Penelton v. State, 277 Ark. 225 , 640 S.W.2d 795 (1982), and Rhodes v. State, 276 Ark. 203 , 634 S.W.2d 107 (1982), which we reversed and remanded seven years ago. We reversed and remanded in Hendrickson v. State, 285 Ark. 462 , 688 S.W.2d 295 (1985), the first time it was before the court, but the case was affirmed on its second appeal. Hendrickson v. State, 290 Ark. 319 , 719 S.W.2d 420 (1986).

In the seven cases since Fretwell that have survived our review, six of the defendants are white and one is black. (Juries in these 13 cases imposed the death penalty on seven black men and six white men.)

During the period from May 12,1986, to this date, we have reviewed 28 cases in which capital murder was the finding and the death penalty sought. The death penalty was imposed in 13 cases and life imprisonment without parole was imposed in the remaining 15.

Some cases are beginning to survive the gauntlet of the federal district court and the Eighth Circuit Court of Appeals. Habeas corpus relief has been denied in Hayes v. Lockhart, 852 F.2d 339 (8th Cir. 1988); Hulsey v. Sargent, 821 F.2d 469 (8th Cir.), cert. denied, _ U.S. _, 108 S.Ct. 299 (1987), and Fairchild v. Lockhart, 675 F.Supp. 469 (E.D. Ark. 1987). But some cases seem to just disappear into the federal judicial machinery. For instance, in 1980 we affirmed the conviction of Eddie Lee Miller. Miller filed a habeas petition in federal district court in 1981. Eight years have passed and there has been no ruling on the petition.

Other cases have met with similar delays. The habeas petition of John Edward Swindler has been pending in federal court since 1981; Clay Anthony Ford since 1982; Darrell Wayne Hill since 1983; Ricky Ray Rector since 1984; and Wilburn Anthony Henderson since 1984. The question has to be asked: why have these Arkansas cases been neglected or delayed? Arkansas deserves an answer.

Habeas relief has been granted in Simmons v. Lockhart, 856 F.2d 1144 (8th Cir. 1988), and Singleton v. Lockhart, 653 F.Supp. 1114 (E.D. Ark. 1986).

Two cases merit special mention. In 1986 the U.S. Supreme Court vacated the Eighth Circuit’s decisions in Ruiz and Van Denton v. Lockhart, 754 F.2d 254 (8th Cir. 1985), and Woodard v. Sargent, 753 F.2d 694 (8th Cir. 1985), vacated, 476 U.S. 1112 (1986). The Eighth Circuit had reasoned that death qualified juries are unconstitutional, but the Supreme Court later held that they are not. See Lockhart v. McCree, 476 U.S. 162 (1986).

Nevertheless, after those decisions were vacated, the Eighth Circuit set aside the death sentences again, reasoning.that it is unconstitutional to use pecuniary gain as an ággravating circumstance in a robbery-murder case (known as the “double counting” argument). Ruiz and Van Denton v. Lockhart, 806 F.2d 158 (8th Cir. 1986); Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986). That was also the reasoning used to reduce the death sentence to life imprisonment in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013 (1985). But in the recent case of Lowenfield v. Phelps, _ U.S._, 108 S.Ct. 546 (1988), the Supreme Court overruled the Eighth Circuit’s position on the issue.

After thirteen years of court review, the death sentence still remains unexecuted. I have kept these figures for my own information as well as for anyone else interested in how the law of capital punishment fares. One safe conclusion can be made: there seems to be no end to judicial review of these decisions.

ADDENDUM

In the following cases this court affirmed the appellants’ death sentences:

Starr v. State, 297 Ark. 26 , 759 S.W.2d 535 (1988). (Starr raped his 76 year old victim and killed her with an iron pipe.)

Whitmore v. State, 296 Ark. 308 , 756 S.W.2d 890 (1988). (Whitmore stabbed his victim, cut her throat and took a small amount of money from her house.)

Franz v. State, 296 Ark. 181 , 754 S.W.2d 839 (1988). (Franz, as next friend, appealed the death sentence of Ronald Gene Simmons. Simmons killed two people, wounded four and took one hostage during a shooting spree in Russellville.)

Gardner v. State, 296 Ark. 41 , 754 S.W.2d 518 (1988). (Gardner strangled a married couple and their daughter during the course of robbing their home.)

O’Rourke v. State, 295 Ark. 57 , 746 S.W.2d 52 (1988),petition for postconviction relief pending. (O’Rourke murdered his parents.)

Snell v. State, 290 Ark. 503 , 721 S.W.2d 628 (1986), cert. denied,_U.S__, 108 S.Ct. 202 (1987). (Snell murdered a pawnshop owner in the course of a robbery.)

Hill v. State, 289 Ark. 387 , 713 S.W.2d 233 , cert. denied, 479 U.S. 1101 , 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144 , 728 S.W.2d 510 (1987). (Hill escaped from prison, took a family hostage, and later killed a state trooper.)

The court found error in the sentencing phase in Wilson v. State, 295 Ark. 682 , 751 S.W.2d 734 (1988) (aggravating circumstance “especially heinous, atrocious or cruel” unconstitutionally vague), and in Pickens v. State, 292 Ark. 632 , 730 S.W.2d 230 (1987) (evidence of the appellant’s behavior subsequent to the crime should have been considered as a mitigating factor.)

The court has reversed the following death penalty cases, but they have not been presented again on appeal: Burnett v. State, 295 Ark. 401 , 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88 , 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421 , 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521 , 726 S.W.2d 653 (1987).

In the following cases, capital murder was charged and found and though the death penalty was sought, it was not imposed: Hatley v. State, 289 Ark. 130 , 709 S.W.2d 812 (1986); Watson v. State, 289 Ark. 138 , 709 S.W.2d 817 (1986); Baker v. State, 289 Ark. 430 , 711 S.W.2d 816 (1986); Rhodes v. State, rev’d and remanded, 290 Ark. 60 , 716 S.W.2d 758 (1986); Hendrickson v. State, 290 Ark. 319 , 719 S.W.2d 420 (1986); Thrash v. State, 291 Ark. 575 , 726 S.W.2d 283 (1987); Rose v. State, rev’d and remanded, 294 Ark. 279 , 742 S.W.2d 901 (1988); Scherrer v. State, 294 Ark. 287 , 742 S.W.2d 884 (1988); David v. State, 295 Ark. 131 , 748 S.W.2d 117 (1988); Ronning v. State, 295 Ark. 228 , 748 S.W.2d 633 (1988); McDougald v. State, 295 Ark. 276 , 748 S.W.2d 340 (1988); Sellers v. State, 295 Ark. 489 , 749 S.W.2d 669 (1988); Allen v. State, 296 Ark. 33 , 751 S.W.2d 347 (1988); Bell v. State, 296 Ark. 458 , 757 S.W.2d 937 (1988); Bowden v. State, rev’d and remanded, 291 Ark. 160 , 761 S.W.2d 148 (1988).