# Clines v. State > Supreme Court of Arkansas · July 5, 1983 · 280 Ark. 77 URL: https://www.frixlaw.com/law-library/cases/9763286 ## Case - **Full name:** Hoyt Franklin CLINES, James William HOLMES, Darryl v. RICHLEY and Michael Ray ORNDORFF v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** July 5, 1983 - **Citations:** 280 Ark. 77; 656 S.W.2d 684; 1983 Ark. LEXIS 1444 - **Precedential status:** Published - **Opinion:** Concurring in part by Dudley - **Judges:** Hays, Dudley, Purtle - **Cited by:** 46 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763286 ## How later opinions describe it (automated extraction) - stating "Article 7, Section 4 of the Arkansas Constitution confers upon this court superintending control over all inferior courts of law or equity. This Court has inherent rule making authority under this provision of the Constitution." ## Opinion text Robert H. Dudley, Justice, concurring in part, dissenting in part. The State adduced overwhelming evidence that the four appellants were guilty of jointly committing a capital murder and two robberies. Their individual defenses were not mutually antagonistic. Although the charges were joined and the appellants were jointly tried, the appellants as well as the State were afforded a just and fair proceeding through the accusatorial phase of the bifurcated capital murder trial. However, that holding does not mandate the conclusion that the due process protections were sufficiently afforded at the joint sentencing phase of the capital murder trial. The two phases of the bifurcated trial serve vastly different purposes. The essence of the accusatorial phase is the formal adversary presentation of evidence relative to guilt. The adversary concept places the State and the accused on an equal footing and so, in fairness to the State, joint trials are oftentimes required through this stage. Markedly different, the essence of the sentencing phase is the search for relevant information to choose which of the two penalties, life without parole or death, is appropriate for the person already found guilty. This second phase search for information is not based upon the same adversary concept. Our applicable statute provides that mitigating circumstances may be presented regardless of their admissibility under the rules of evidence while aggravating circumstances may be presented only when they are admissible under the rules of evidence. Ark. Stat. Ann. § 41-1304 (4) (Repl. 1977). The underlying reason for this is that the penalty of death is qualitatively different from all other punishments. When the death penalty is sought, justice demands individual, not joint, sentencing. It is for this same reason that mandatory death sentences for particular crimes have been declared unconstitutional. Gregg v. Georgia, 428 U.S. 153 (1976). It is only after a structured exercise of discretion which guarantees individualized sentencing that the death sentence may be imposed. Proffitt v. Florida, 428 U.S. 242 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976). Accordingly, after a finding of guilt of capital murder, juries in this State may impose a sentence of death only after considering aggravating and mitigating circumstances. Ark. Stat. Ann. §§ 41-1301 & 1302 (Repl. 1977). Aggravating circumstances are principally related to the personal history of the individual defendant and not the nature of the crime committed. Ark. Stat. Ann. § 41-1303 (Repl. 1977). Mitigating circumstances are totally related to the personal background of the defendant. Id. Individualized sentencing requires structured detailed consideration of the personal history of the guilty person before the death sentence may be imposed. Any impediment to that individualized exercise of discretion is violative of the protection of due process. The clear issue is whether the joint sentencing procedure used in this case afforded each appellant the structured and detailed consideration of his individual background which is required before the sentence of death may be imposed. Surely no one can doubt that when the j ury was sent out of the courtroom to fix the punishment for four equally guilty persons at one sitting, that after fixing the penalty for the first three at death, there was a great reluctance to give the fourth a lesser sentence. Such reluctance alone might arbitrarily mandate a fourth death penalty for the particular crime regardless of the guilty person’s personal history. This impediment to the individual exercise of discretion violates due process and the prohibition against arbitrary death sentences. Such a scenario may well have occurred in the case at bar. In the sentencing phase appellant Clines was shown to have pleaded guilty in 1978 to burglary, a non-violent crime. No other convictions or felonious actions were shown to have been committed by him during this stage of the trial. The only other proof of a prior bad action, for which there was no conviction, came during the accusatorial phase of the trial when an accomplice gave uncorroborated testimony on a collateral matter. Yet, he, too, was given the death sentence. For this reason I dissent from that part of the well written majority opinion which affirms the joint proceeding to fix the punishments at death. I concur in that part of the opinion affirming the life sentences for the aggravated robberies. John I. Purtle, Justice, dissenting. I believe at least one of the appellants, Michael Orndorff, was prejudiced by the trial court’s refusal to give him a separate trial. To grant him a separate trial would have in no way selectively excluded him from culpability in regard to the crime for which he was convicted. In fact it seems to me that holding him to trial with the actual murderers practically insured his conviction. Guilt by association is a common human error and in this case I have no doubt it played a big part in the minds of the jury who meted out identical convictions and uniform penalties to all four appellants. When each of the appellants attempted to place himself outside the bedroom where decedent was shot the result was that each defendant put before the same jury a defense inconsistent with the other defendants’ defenses. The majority opinion seems to infer some type of guilt from some of the appellants’ failure to testify. If the trial court did this we would vote unanimously to reverse and remand. The trial court should have granted a severance. A total of twelve peremptory challenges were allowed the four defendants. One of them did not get to exercise a single peremptory challenge. Had they been tried separately each would have been allowed twelve challenges. Therefore, these appellants were denied rights which are extended to others tried separately on identical charges. There is nothing to prevent a trial judge from allowing more than twelve peremptory challenges if fairness and impartiality demand it. Furthermore, it was clearly prejudicial to allow evidence of crimes for which the appellants had not been convicted even though this was during the sentencing phase of the bifurcated trial. What happened to the old law that held every individual is presumed innocent? Soon it will be legal for the state to charge an accused of spurious crimes in order to help secure a conviction. For all we know none of the appellants were or will ever be found to have committed the alleged crime which was used during the sentencing phase. I am still of the opinion that a death qualified j ury is not comprised of a cross-section of the population as required by the Constitutions of Arkansas and the United States. It appears to me that there is a misunderstanding of the Witherspoon doctrine when prospective jurors are excluded because of religious or moral scruples against the death penalty. Perhaps some member or members of this very court have religious or moral scruples against the death sentence, yet we affirm such sentences if we find no reversible error. One who does not believe in the death sentence may honestly and conscientiously vote for such a sentence in upholding the law. For these reasons I must dissent to the majority opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763286. Public record. Not legal advice.