Neal v. State, CR75-115

• Decision Date: 28 March 1977
• Docket Number: No. CR75-115,CR75-115
• Citation: 261 Ark. 336,548 S.W.2d 135
• Parties: Charles NEAL, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 135

548 S.W.2d 135

261 Ark. 336

Charles NEAL, Appellant, v. STATE of Arkansas, Appellee.

No. CR75-115.

Supreme Court of Arkansas, In Banc.

March 28, 1977.

Laster & Lane by James F. Lane, Little Rock, for appellant.

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

FOGLEMAN, Justice.

The judgment sentencing appellant to death by electrocution was affirmed by us in Neal v. State, 259 Ark. 27, 531 S.W.2d 17. Just as was the case in Collins v. State, 259 Ark. 8, 531 S.W.2d 13, 261 Ark. ---, 548 S.W.2d 106 (1977), the Supreme Court of the United States vacated this judgment and remanded this case to us for reconsideration in the 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 and Waxton 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). On the authority of Collins v. State, 261 Ark. ---, 548 S.W.2d 106 (1977), and for additional reasons hereinafter stated, we adhere to the views expressed in Neal v. State, supra, 259 Ark. 27, 531 S.W.2d 17, and again affirm the judgment of the trial court.

Most of the contentions made and arguments advanced by the appellant on this reconsideration are identical to those made and advanced in Collins v. State, supra, 261 Ark. ---, 548 S.W.2d 106 (1977). Since these points were comprehensively treated in the opinion on reconsideration in that case, we will not again treat them here.

Appellant has conceded that the constitutional standards for the trial stage under Ark.Stat.Ann. § 41-4701 et seq. (Supp.1973), i. e., Act 438 of 1973, have been minimally, if not abundantly, met. In any event, we see no reason for any further discussion of the trial stage of capital felony murder prosecutions. It is the matter of appellate review on which appellant addresses us. Appellant does argue that there can be no meaningful appellate review of a death sentence in the absence of a mechanism, such as that provided by the Georgia statutes, through which the Georgia Supreme Court is provided in every case in which the death penalty is imposed with a report from the trial judge in the form of a questionnaire and an accumulation of the records of all capital cases in which sentence has been imposed after January 1, 1970, or such earlier date as the Georgia Supreme Court may deem appropriate. But appellant concedes that it was pointed out in Proffitt that the Florida statute has no such provisions. We find nothing in the language of any of the opinions in Proffitt, or in Gregg for that matter, to indicate that this mechanism is an essential safeguard against the arbitrary, capricious, wanton or freakish imposition of the death penalty. In Proffitt, the Stewart-Powell-Stevens plurality ¹ (which appellant mistakenly takes to be a majority) recognized the absence of this kind of mechanism, but (citing State v. Dixon, 283 So.2d 1 (Fla., 1973), cert. den. 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295, also cited by us in Collins v. State, supra, 259 Ark. 8, 531 S.W.2d 13), found meaningful appellate review in the Florida Supreme Court's undertaking to review a case in which a defendant is sentenced to die in the light of other decisions to determine whether the punishment was too great and taking its function to be to "guarantee that the (aggravating and mitigating) reasons present in one case will reach a similar result to that reached under similar circumstances in another case." Even the Stewart plurality found that the Florida capital-sentencing procedures seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner, and, the appellate review system, to minimize any risk to the contrary. It pointed out that the decisions of the sentencing authority were reviewed, on appeal, to ensure that they are consistent with other sentences imposed in similar circumstances.

The exemplification of the statement by the Stewart plurality that the Florida Supreme Court, had, in effect, adopted the type of proportionality review mandated by the Georgia statute was found in Alford v. State, 307 So.2d 433 (Fla., 1975), cert. den. 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976) and Alvord v. State, 322 So.2d 533 (Fla., 1975), cert. den. 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). A careful reading of these cases shows a total absence of the mechanism which appellant deems necessary to meaningful appellate review. In those cases, the only comparisons made were related to circumstances prevailing in death penalty cases previously reviewed by the Florida court. Any thought that the United States Supreme Court, or even the Stewart plurality, would say that the Georgia mechanism is an essential constitutional safeguard is quickly dispelled by examination of the examples cited in the plurality opinion. In both Alford and Alvord the Florida Supreme Court merely compared the factual background of the case being reviewed with facts disclosed in their opinions in recent cases in which the death penalty had been imposed. The Stewart plurality also found that the Texas system of prompt judicial review in a court with statewide jurisdiction provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law and served to insure that sentences of death would not be wantonly or freakishly imposed. Jurek v. Texas, supra. Yet, the Texas system is not in any wise comparable to the Georgia system insofar as the mechanics emphasized by appellant are concerned. We find no merit in appellant's argument on this point.

The next argument is that no meaningful appellate review is possible because the jury's findings on aggravating and mitigating circumstances are mere "checkmark" selections of conclusions stated in statutory language without any information as to the manner in which the decision was reached. We find no great difficulty in this approach to the jury's findings. In our original opinion, we rejected the argument that the statutorily described aggravating and mitigating circumstances were unconstitutionally vague. Neal v. State, supra, 259 Ark. 27, 531 S.W.2d 17. We are unable to find anything in the Woodson-Roberts-Gregg-Proffitt-Jurek quintuplet offspring of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, to cause us to change our views in this respect. To the contrary, we find support for our holding, after comparing the enumerated circumstances in our statute with those of the Georgia statute. While recognizing that guiding standards for the sentencing authority could fail for vagueness, the Stewart plurality in Gregg said:

* * * While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

* * * No longer can a Georgia jury do as Furman's jury did: reach a finding of the defendant's guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury's attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury's attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e. g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime). As a result, while some jury discretion still exists, "the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application." Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615.

That plurality found that the Georgia standards, as construed by the Georgia Supreme Court, were sufficiently precise that the Georgia capital sentencing system would not violate the Eighth and Fourteenth Amendments to the United States Constitution. The White-Burger-Rehnquist concurrence seemed to have no particular problem with the assertion that the Georgia standards were too vague. It also appears to us that the standards set out in our statute are as definite as the Florida standards which seem to have been found adequate in Proffitt to meet Furman requirements. In Proffitt, the Stewart plurality said:

While these questions and decisions may be hard, they require no more line-drawing than is commonly required of a fact finder in a lawsuit. For example, juries have traditionally evaluated the validity of defenses such as insanity or reduced capacity, both of which involve the same considerations as some of...