Camargo v. State, CR

• Decision Date: 25 March 1999
• Docket Number: No. CR,CR
• Parties: Rafael CAMARGO, Appellant, v. STATE of Arkansas, Appellee. 98-772.
• Court: Arkansas Supreme Court

Page 680

987 S.W.2d 680

337 Ark. 105

Rafael CAMARGO, Appellant, v. STATE of Arkansas, Appellee.

No. CR 98-772.

Supreme Court of Arkansas.

March 25, 1999.

Robert C. Marquette, Van Buren, for Appellant.

Mark Pryor, Attorney General, Kelly K. Hill, Deputy Attorney General, David R. Raupp, Senior Assistant Attorney General, Little Rock, for Appellee.

DONALD L. CORBIN, Justice.

Appellant Rafael Camargo appeals the judgment of the Crawford County Circuit Court sentencing him to death for the murders of Deanna Petree and her fifteen-month-old son, Jonathan Macias. This is the second appeal of this matter; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(7). See Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997) (Camargo I ). In the first appeal, this court affirmed Appellant's capital-murder convictions, but reversed his death sentence and remanded the case for resentencing. On remand, Appellant was again sentenced to death. Appellant raises two points for reversal of the sentence. We find no error and affirm the judgment.

The pertinent facts were set out in Camargo I:

Appellant Rafael Camargo was convicted of two counts of capital murder and sentenced to death. On October 31, 1994, he killed his former girlfriend, Deanna Petree, and her fifteen-month-old son, Jonathan. The crimes took place in the home Deanna and Jonathan shared with her mother and three brothers. Her mother and two of the brothers testified that they saw appellant shoot Deanna. Robert, the oldest brother, testified that appellant also pointed the shotgun at him and pulled the trigger; but the gun failed to fire. All the survivors took refuge outside the house and heard additional shots being fired. They saw appellant flee from the house before the police arrived. When the police arrived, they found Deanna and Jonathan shot to death in the house.

327 Ark. at 634-35, 940 S.W.2d at 466. This court reversed Appellant's death sentence due to the jury's failure to unanimously return written findings that: (1) one or more aggravating circumstances existed beyond a reasonable doubt; (2) the aggravating circumstances outweighed beyond a reasonable doubt all mitigating circumstances found to exist; and (3) the aggravating circumstances justified a sentence of death beyond a reasonable doubt. See Ark.Code Ann. § 5-4-603(a) (Repl.1997).

During the resentencing trial, the State presented evidence and exhibits that were nearly identical to those presented in the first trial. The jury unanimously found that two aggravating circumstances existed beyond a reasonable doubt: (1) Appellant previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person, and (2) in the commission of capital murder, Appellant knowingly created a great risk of death to a person other than the victims. The jury also unanimously found the mitigating circumstance that Appellant adjusts well to confinement; no other mitigating circumstances were found by any of the jurors. For reversal of the current death sentence, Appellant raises issues concerning the constitutionality of section 5-4-603(a) and the trial court's refusal to specifically instruct the jury on the mitigating factor of Appellant's mental retardation.

I. Constitutionality of Section 5-4-603(a)

For his first point for reversal, Appellant argues that section 5-4-603(a) is unconstitutional because it mandates the imposition of the death penalty and does not allow the jury to show mercy for the defendant. This court has addressed this same argument on numerous occasions, and we have repeatedly upheld the constitutionality of section 5-4-603(a), which provides:

(a) The jury shall impose a sentence of death if it unanimously returns written findings that:

(1) Aggravating circumstances exist beyond a reasonable doubt; and (2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and

(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt. [Emphasis added.]

Appellant's argument focuses on the word "shall" in support of his argument that if the jury makes those three findings, it has no choice but to impose the death penalty. We disagree.

Section 5-4-603(a) does provide that the jury "shall" impose the death penalty, but only if the jury makes the foregoing three written findings. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). The jury may show mercy to the defendant "simply by finding that the aggravating circumstances, even though they exist and 'outweigh' the mitigating circumstances, do not 'justify' imposition of the death sentence." Id. at 33, 977 S.W.2d at 207-08. See also Echols v. State, 326 Ark. 917, 936 S.W.2d 509, cert. denied, 520 U.S. 1244, 117 S.Ct. 1853, 137 L.Ed.2d 1055 (1997) (holding that section 5-4-603(a) merely provides specified criteria that must be fully satisfied before the death penalty can be imposed; it does not contain a binding instruction nor require a mandatory death sentence); Nooner v. State, 322 Ark. 87, 107, 907 S.W.2d 677, 687 (1995), cert. denied, 517 U.S. 1143, 116 S.Ct. 1436, 134 L.Ed.2d 558 (1996) (holding that "[w]e have underscored that our statute provides that a jury is free to sentence to life without parole if it finds the aggravating circumstances do not 'justify' death.") Appellant has given us no reason for retreating from our previous holdings, and we decline to do so.

Additionally, the State contends that we could summarily affirm this issue by employing the law-of-the-case doctrine. Particularly, the State contends that because this argument was raised by Appellant during the first trial, the decision in Camargo I is dispositive of the issue, as this court reviewed all alleged errors that may have been prejudicial to Appellant pursuant to Ark. Sup.Ct. R. 4-3(h) and found no such error. Thus, the State argues that the 4-3(h) review is now the law of the case on this issue.

The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996) (citing Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588, cert. denied, 513 U.S. 974, 115 S.Ct. 448, 130 L.Ed.2d 357 (1994)). The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in a prior appeal from being raised in a subsequent appeal "unless the evidence materially varies between the two appeals." Kemp v. State, 335 Ark. 139, 142, 983 S.W.2d 383, 385 (1998) (quoting Fairchild, 317 Ark. at 170, 876 S.W.2d at 590). The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Questions that have not been decided do not become law of the case merely because they could have been decided; at the same time, however, law-of-the-case principles are applied when a court concludes that an issue was resolved implicitly despite the lack of any explicit statement. Id. Significantly, the doctrine extends to issues of constitutional law. Kemp, 335 Ark. 139, 983 S.W.2d 383.

It is the State's contention that when this court conducted its review of the record pursuant to Rule 4-3(h), it implicitly decided the constitutional issue now raised by Appellant. We agree that our 4-3(h) review of the record in Camargo Iwould serve as an additional ground for affirming this issue.

Pursuant to Rule 4-3(h), in all criminal appeals where the appellant has been sentenced to death or life imprisonment, this court must review the record for any adverse rulings objected to by the appellant, but not argued on appeal. This court conducted such a review in Camargo I and found no reversible errors. The record demonstrates that Appellant raised the issue of the constitutionality of section 5-4-603(a) during the first trial. The record also demonstrates that the evidence presented in the second trial did not materially vary with that presented in the first trial. Thus, this court's Rule 4-3(h) review in the first appeal is now the law of the case on this issue.

II. Instruction on Mitigating Factor

For his second point for reversal, Appellant argues that the trial court erred in refusing to instruct the jury on each of the mitigating factors claimed by him. Although he admits that he was allowed to present evidence from a psychiatrist indicating that he functions in a borderline to mild retardation range, Appellant nonetheless argues that it was error for the trial court to refuse to specifically instruct the jury to consider mental retardation as a mitigating circumstance. We disagree.

The record reflects that the trial court instructed the jurors regarding the finding of mitigating circumstances as follows:

If you do unanimously find one or more aggravating circumstances, you should then complete Form 2, which deals with mitigating circumstances. Form 2 lists some factors that you may consider as mitigating circumstances. However, you are not limited to this list. You may, in your discretion, find other mitigating circumstances.

Unlike an aggravating circumstance, you are not required to be convinced of the existence of a mitigating circumstance beyond a reasonable doubt. A mitigating circumstance is shown if you believe from the evidence that it probably existed. [Emphasis added.]

The trial court then submitted the following mitigating factors to the jurors from Form 2:

The capital murder was committed while [Appellant] was under extreme mental or emotional disturbance.

The capital murder was committed while [Appellant] was acting under unusual pressures or influences or under the domination of another person.

The capital murder was committed while the capacity of [Appellant] to...