Collins v. State

• Decision Date: 07 March 1977
• Docket Number: No. CR75-110,CR75-110
• Citation: 261 Ark. 195,548 S.W.2d 106
• Court: Arkansas Supreme Court
• Parties: Carl Albert COLLINS, Appellant, v. STATE of Arkansas, Appellee.

Page 106

548 S.W.2d 106

261 Ark. 195

Carl Albert COLLINS, Appellant, v. STATE of Arkansas, Appellee.

No. CR75-110.

Supreme Court of Arkansas, In Banc.

March 7, 1977.

Rehearing Denied April 11, 1977.

[261 Ark. 200] John Barry Baker, Fayetteville, for appellant.

Jim Guy Tucker, Atty. Gen. by Robert A. Newcomb, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

The judgment sentencing appellant Carl Albert Collins to death by electrocution under Act 438 of 1973 (Ark.Stat.Ann., Title 41, Chap. 47, Supp.1973) was affirmed by this court on December 22, 1975. See Collins v. State, 259 Ark. 9, 531 S.W.2d 13. Thereafter, petition for writ of certiorari for review of our judgment affirming the judgment of the Circuit Court of Washington County was filed in the Supreme Court of the United States. That court, on October 4, 1976, vacated our judgment, insofar as it left undisturbed the death penalty imposed, and ordered that this cause be remanded to this court for further consideration in light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The mandate remanding the case was issued on November 16, 1976 and filed here on November 18, 1976.

Our consideration of the imposition of the death penalty in this case (the only part of our judgment that was vacated), in the light of these decisions, leads us to the same conclusions we reached when the case was previously considered, i. e., that the statute under which the death penalty was imposed is constitutional and valid; that the pertinent issues were properly submitted to the jury, whose verdict was sustained by the evidence; and that death by electrocution is not unconstitutionally cruel. We adopt our earlier opinion in this case and reiterate all that we there said. Fundamentally, our present consideration is concerned with determining whether the death penalty statute under which appellant Collins was sentenced ¹ falls within the constitutional perimeter discernible from the 1976 quintuplet offspring of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Our review is not simplified by the same multiplicity of opinions in these

cases that we found in Furman ; however, our principal consideration must of necessity be directed toward the opinions of the Stewart-Powell-Stevens plurality (hereinafter referred to as the Stewart plurality) in Gregg, Proffitt and Jurek, because from our analysis, the participation of at least one member of this plurality was essential to the sustention of the death penalty in those three cases. In viewing the statute under which appellant was sentenced, we cannot forget, however, that these opinions are not majority opinions in any of the three cases. It is important that we keep in mind what the Stewart plurality does not say while tracing what it does say. Let us first note, however, certain definite conclusions we find from reading all the opinions in all the five cases in the light of which we are mandated to review our holding in this case. They are:

1. The death penalty is not per se cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.

2. Imposition of a death penalty pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses constitutes cruel and unusual punishment prohibited by the Eighth Amendment.

3. Each distinct system permitting the imposition of the death penalty for a criminal offense must be examined to determine whether it violates Eighth Amendment prohibitions against cruel and unusual punishment.

4. The basic concern, expressed in Furman v. Georgia, supra centered on defendants who were being condemned to death capriciously and arbitrarily.

5. Facially the procedures in Georgia, Florida and Texas satisfy the Eighth Amendment requirement. Those in North Carolina and Louisiana do not.

The Supreme Court of the United States did nothing more in the Furman offspring than consider each of the statutes of the five respondent states to determine whether the particular state afforded adequate safeguards against the capricious and freakish imposition of the death penalty. See State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976). Our analysis of our own procedures leads us to the conclusion that the death sentence was constitutionally imposed in this case.

We approach the consideration of the question before us mindful of the strong presumption of constitutionality appurtenant to every legislative enactment, unless it appears upon its face to be within a specific prohibition, such as one of those in the first ten amendments to the United States Constitution. Stone v. State, 254 Ark. 1011, 498 S.W.2d 634; Williams v. State, 253 Ark. 973, 490 S.W.2d 117; Neal v. Still, 248 Ark. 1132, 455 S.W.2d 921; Dabbs v. State, 39 Ark. 353, 43 Am.Rep. 275; San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), also, Stewart, J., concurring p. 59; see also, plurality opinion, Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973), citing Stewart, J., concurring in Rodriguez; Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971); McDonald v. Board of Election Com., 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959); Alaska Packers Association v. Industrial Accident Com., 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935); Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281 (1933).

We need not spend a great deal of time on such features of the Arkansas statute as the definition of the crime for which the death penalty may be imposed and the bifurcated trial. Since the crime in this case was murder, we view the statute only as it pertains to homicides. It is crystal clear that insofar as homicide is concerned there are under this statute several degrees all Capital felony murder.

                included (or potentially so) in capital felony.  2 They are
                

Life felony murder.

Felony murder in the first degree. See, Ark.Stat.Ann. §§ 41-2201, 2205 (Repl.1964).

Felony murder in the second degree. See, Ark.Stat.Ann. §§ 41-2201, 2206 (Repl.1964).

Voluntary manslaughter. See Ark.Stat.Ann. §§ 41-2207, 2208 (Repl.1964).

Involuntary manslaughter. See Ark.Stat.Ann. §§ 41-2207, 2209 (Repl.1964).

Negligent homicide. See Ark.Stat.Ann. § 75-1101 (Repl.1957).

The definition of capital felony murder strictly limits the homicidal offenses for which the death penalty may be imposed. Ark.Stat.Ann. §§ 41-4701, 4702 (Supp.1973). This limitation seems constitutionally adequate. Jurek v. Texas, supra. The imposition of the death sentence is not mandatory in any case, for the jury may find mitigating circumstances which outweigh any aggravating circumstances it finds to exist. Ark.Stat.Ann. §§ 41-4703, 4710, 4712 (Supp.1973). The statute provides adequate guidelines, so limiting and directing the exercise of the jury's discretion that an arbitrary, capricious, wanton or freakish exercise of that discretion is improbable. Gregg v. Georgia, supra; Proffitt v. Florida, supra; Jurek v. Texas, supra; Collins v. State, supra. See also, Neal v. State, 259 Ark. 27, 531 S.W.2d 17. Cf. Woodson v. North Carolina, supra; Roberts v. Louisiana, supra. The Arkansas statutes applicable here require that the sentencing authority focus on the particularized nature of the crime, just as the law did in Georgia, Florida and Texas. Ark.Stat.Ann. §§ 41-4702, 41-4712 (Supp.1973). The bifurcated trial mandated by our statutes in effect at the time of appellant's trial (Ark.Stat.Ann. §§ 41-4710 41-4713 (Supp.1973)) seems to have been approved, although not required. The aggravating and mitigating circumstances that may be considered under our statute seem to meet constitutional muster. Ark.Stat.Ann. §§ 41-4711, 4712 (Supp.1973). See Gregg v. Georgia, supra; Proffitt v. Florida, supra.

It is urged, however, that our system does not meet Gregg-Proffitt-Jurek standards necessary to avoid Eighth and Fourteenth Amendment prohibitions for lack of a mandatory appeal of a judgment imposing the death penalty and of appellate review which compares cases in which the death penalty has been imposed.

We find nothing in any opinion, and certainly no majority, which supports a holding that there must either be a mandatory or automatic appeal of a judgment imposing the death penalty or that there must be appellate review which compares cases in which the death penalty has been imposed. We again point out that the Supreme Court of the United States did nothing more than consider the statutes of each of five states to determine whether there were sufficient safeguards against the capricious and freakish imposition of the death penalty. It is true that the Stewart plurality found that, in addition to bifurcated trial with sentencing dependent upon a jury's or trial judge's findings as to aggravating or mitigating circumstances, appellate review is an important safeguard, when that review is for error and appropriateness of the sentence, and to determine whether: the sentence was imposed under the influence of passion and prejudice or any arbitrary factor; the evidence supports the jury's or judge's finding of statutory aggravating circumstances; the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Gregg v. Georgia, ...