Giles v. State

• Decision Date: 11 April 1977
• Docket Number: No. CR,CR
• Citation: 549 S.W.2d 479,261 Ark. 413
• Parties: Henry GILES, Appellant, v. STATE of Arkansas, Appellee. 75-209.
• Court: Arkansas Supreme Court

Page 479

549 S.W.2d 479

261 Ark. 413

Henry GILES, Appellant, v. STATE of Arkansas, Appellee.

No. CR 75-209.

Supreme Court of Arkansas, In Banc.

April 11, 1977.

Jimmie L. Wilson and L. T. Simes II, West Helena, for appellant.

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

FOGLEMAN, Justice.

Appellant Henry Giles was found guilty of the murder of Evelyn Drummond in the commission of a robbery and sentenced to death by electrocution in a bifurcated trial. We find error only in the sentencing procedure, and, since we find no other error, affirm the conviction but modify the judgment to a finding of guilt of life felony-murder with a sentence of life imprisonment without parole unless the Attorney General elects to request a remand for a new trial.

We shall consider the points for reversal asserted by appellant and those raised by amicus curiae to the extent necessary to furnish guidance to the trial court on a new trial, if the Attorney General should elect not to accept a reduction of the sentence. It should be noted that amici curiae must take the case as they find it and cannot introduce new issues into the case. State ex rel. Nesbitt v. Ford, 434 P.2d 934 (Okl.1967); Taylor v. Commonwealth, 461 S.W.2d 920 (Ky.1970), cert. den. Brown v. Kentucky,404 U.S. 837, 92 S.Ct. 126, 30 L.Ed.2d 70; State ex rel. Baxley v. Johnson,293 Ala. 69, 300 So.2d 106 (1974); Hootch v. Alaska State-Operated School System, 536 P.2d 793 (Alaska, 1975); Shaw v. Industrial Comm., 109 Ariz. 401, 510 P.2d 47 (1973); Eugene Cervi & Co. v. Russell, 31 Colo.App. 525, 506 P.2d 748 (1972); Sauerman v. Stan Moore Motors, Inc., 203 N.W.2d 191 (Iowa, 1972); Robert Williams & Co., Inc. v. State Tax Comm. of Missouri,498 S.W.2d 527 (Mo.1973); Kvaalen v. Graybill, 159 Mont. 190, 496 P.2d 1127 (1972); Castillo Corp. v. New Mexico State Tax Comm., 79 N.M. 357, 443 P.2d 850 (1968); State v. Brannan, 85 Wash.2d 64, 530 P.2d 322 (1975); Delardas v. County Court of Monongalia County, 155 W.Va. 776, 186 S.E.2d 847 (1972). We shall ignore any point asserted by amicus curiae, unless the appellant has properly raised it. In a capital case, or one in which punishment is life imprisonment, this may be done by a proper objection in the trial court. Collins v. State, 261 Ark. ---, 548 S.W.2d 106 (1977); Robertson v. State, 256 Ark. 366, 507 S.W.2d 513; Hays v. State, 230 Ark. 731, 324 S.W.2d 520; Young v. State, 230 Ark. 737, 324 S.W.2d 524; Rorie v. State,215 Ark. 282, 220 S.W.2d 421.

Appellant first argues that the execution of the death penalty in this case pursuant to § 6, Act 438 of 1973 (Ark.Stat.Ann. § 41-4706 (Supp.1973)) constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. In support of this point appellant and amicus curiae argue that (1) the statute permits arbitrary selectivity in determining whether a defendant charged with capital felony murder shall live or die, because (a) the imposition of the death penalty is discretionary with the jury, (b) the imposition of the death penalty under this Arkansas statute violates the Eighth and Fourteenth Amendments, just as did the Illinois statute condemned in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), (c) because the death penalty was vacated by the United States Supreme Court in June 29, 1972, in 117 cases, in spite of the fact that there were a variety of statutes and procedures in the various jurisdictions from which the cases had come for review, (d) because various jurisdictions have invalidated death penalties upon the authority of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and (2) because of the allegedly uncontrolled selective discretion of prosecuting attorneys, trial judges, juries and the Governor in choosing which defendants will live and which will die in cases in which the death penalty might be imposed.

Most, if not all of these arguments have been rejected by us in Collins v. State, 261 Ark. ---, 548 S.W.2d 106 (1977), or in Neal v. State, 261 Ark. ---, 548 S.W.2d 135 (1977) and by the majority through plurality and concurring opinions in 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); and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). We will not repeat what we have previously said in Collins v. State, supra and Neal v. State, supra, but will only give attention to those questions which we have not treated since the above decisions of the United States Supreme Court were rendered.

We do not agree that the vacation of death penalties by the United States Supreme Court in the wake of Furman, is of any particular significance, insofar as our statute passed subsequent to the vacation of those death sentences is concerned. We do not consider the invalidation of death sentences by the other jurisdictions mentioned by appellant to be either governing or persuasive as we have viewed the various opinions in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974), Gregg, Proffitt and Jurek. See Collins v. State, supra; Neal v. State, supra. We find Moore v. Illinois, supra, to be of no particular significance since it was an automatic application of Furman, much as we made in Graham v. State, 253 Ark. 462, 486 S.W.2d 678; O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618; and Kuehn v. State, 253 Ark. 889, 489 S.W.2d 505.

It is also urged that the sentencing procedures provided by Ark.Stat.Ann. § 41-4701 et seq. (Supp.1973) violate the Eighth Amendment as interpreted in Furman. This argument is based upon the assertion that there are no standards provided for the jury's "interjection of any other relevant matter" into the sentencing procedure, under § 41-4710(c) (Supp.1973). That possibility seems to pose no problem of due process. As we interpret the act, the jury's consideration of aggravating circumstances is limited to those enumerated, but consideration of mitigating circumstances is not necessarily so restricted. See Collins v. State, supra, 261 Ark. ---, 548 S.W.2d 106. This would seem to be to the advantage rather than to the prejudice of a defendant.

Arguments relating to the lack of meaningful and mandatory appellate review are like the arguments treated and rejected by us in Collins v. State, supra and Neal v. State, supra. The contention that the aggravating and mitigating circumstances enumerated in the statute are not sufficiently precise to pass constitutional muster was also answered on our second considerations of Collins and Neal.

We do not agree with the contention that the fact that the jury found that the youth of Giles, who was born May 1, 1954, was not a mitigating factor, while in Collins, the jury found that the youth of that defendant, aged 20, was a mitigating factor, exemplifies the imprecision of the standards and the potential for unlike results in cases presenting similar circumstances. Appellant points out, as we did in Neal v. State, supra, that the jury has an opportunity to observe a defendant in making this determination. While we might agree that chronological age does not necessarily control in the jury's determination whether a defendant's youth is a mitigating circumstance, nevertheless, it is certainly an important factor. Cf. Allen v. State, 253 Ark. 732, 488 S.W.2d 712. See our treatment of this question in Neal v. State, supra. Any hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances. It is well known that two young persons may vary greatly in mental and physical development, experience and criminal tendencies. State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977). One of these factors may have greater significance than the others in some cases, depending upon the circumstances. Of course, Giles was, at the time of the trial only four months short of full majority for all legal purposes in Arkansas. We point out that the jury not only observed the defendant in this case but heard him testify and was able to evaluate his response to and evasion of questions directed to him.

We do, however, find error in the sentencing phase of the trial. The jury unanimously found that there were two aggravating circumstances, i. e., that appellant was, beyond a reasonable doubt, previously convicted of another capital felony, or of a felony involving the use or threat of violence to the person and that the capital felony was, beyond a reasonable doubt, committed for pecuniary gain. The evidence was certainly sufficient to support these findings. For the moment, we find it unnecessary to discuss that evidence in detail. Suffice it to say that there is no room for doubting that Giles had previously been convicted of robbery and little room for doubt that he committed the murder for pecuniary gain, i. e., in the perpetration of a robbery. The jury found no mitigating circumstance, but we find no evidentiary basis for this finding. It seems to us that the undisputed evidence clearly indicates that this crime was committed while the capacity of appellant to conform his conduct to the requirements of law was impaired as a result of mental disease or defect.

There is no evidence that the crime was planned. ¹ It seems to have been a matter of impulse, commencing with Giles' finding a wire which he had picked up from the street. Shortly thereafter, he walked down an alley and looked in a window of the Shoe Outlet on Hill Street in Forrest City. He saw Mrs. Drummond, a clerk, alone in the store. He wrapped the cord around her neck, dragged her to the rear of the store, and when he noted pulsations in her neck, stabbed her twice with a knife. H...