Pickens v. State

• Citation: 301 Ark. 244,783 S.W.2d 341
• Decision Date: 05 February 1990
• Docket Number: No. CR,CR
• Parties: Edward Charles PICKENS, Appellant, v. STATE of Arkansas, Appellee. 89-94.
• Court: Supreme Court of Arkansas

Page 341

783 S.W.2d 341

301 Ark. 244

Edward Charles PICKENS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-94.

Supreme Court of Arkansas.

Feb. 5, 1990.

Jeff Rosenzweig, John Wesley Hall, Jr., amici curiae brief, Nat. Assoc. of Crim. Defense Lawyers, Ark. Assoc. of Crim. Defense Lawyers, Ralph G. Brodie, amicus curiae brief, Ark. Bar Ass'n, Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

For the third time, a jury has sentenced Edward Charles Pickens to die for a murder committed in 1975, and for the third time we are hearing his appeal. We affirmed his original conviction and sentence in Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978). In 1983, the Eighth Circuit vacated the death sentence due to ineffective assistance of counsel in the penalty phase of the trial. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir.1983). A resentencing jury was empanelled and Pickens again was sentenced to death. We reversed in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied, 484 U.S. 917, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), finding error in the limitation of mitigating circumstances presented to the jury. Yet another resentencing jury was empanelled, this time in Arkansas County at the defendant's request, and Pickens was sentenced to death for the third time. He now appeals from that sentence, raising numerous issues. Finding no reversible error, we affirm.

The primary issue on appeal is whether AMCI 1509 is unconstitutional. The instruction and accompanying forms, which are used to determine the sentence in capital cases, tell the jury that in no event may a sentence of death be imposed unless three findings are unanimously made: 1) that one or more aggravating circumstances exist beyond a reasonable doubt; 2) that the aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found to exist; and 3) that the aggravating circumstances justify beyond a reasonable doubt the sentence of death. It is the third finding with which the appellant takes issue. He claims its language should have been altered so the jury might weigh the mitigating circumstances at all phases of deliberation. He proffered the following instruction:

That the aggravating circumstances when weighed against the mitigating justify beyond a reasonable doubt the sentence of death. (Emphasis added to show modification).

The judge rejected the proposed instruction, and rightfully so. There is no need to weigh the mitigating circumstances again in the third finding. AMCI 1509 takes the jury through a three-step process. The jury may not proceed to the third step unless it has already decided that the aggravating circumstances outweigh the mitigating. The third finding allows the jury to reject the death penalty in spite of the fact that the aggravating circumstances outweigh the mitigating. See Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984).

We also note that the judge agreed to instruct the jury "if you make those findings you may [rather than will] impose the death penalty." This modification was favorable to the defendant, but it was not legally necessary. See Ruiz v. State, supra.

The second argument concerning AMCI 1509 is based on the recent United States Supreme Court case of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). The Court held there was a defect in the language of Maryland's sentence determination forms. Section II of the forms reads as follows:

"Based upon the evidence, we unanimously find that each of the following mitigating circumstances which is marked "yes" has been proved to exist."

There follows a list of seven mitigating circumstances with blanks beside each marked "yes" or "no." Then in the determination of sentence section, the instruction reads as follows:

If Section II was completed and all of the answers were marked "no" then enter death.

The Court found this language implied that if the jury did not unanimously agree on the existence of any single mitigating circumstance, it must impose the death sentence. There was a substantial probability that the jurors did not consider all mitigating evidence.

The appellant claims there is no meaningful difference between the Maryland and Arkansas sentencing forms, but they are, in fact, very different. Our Form 2, which accompanies AMCI 1509, expressly allows the jury to list mitigating circumstances which were found by some, though not all, of its members. Form 3 then allows the jury to determine if the aggravating circumstances outweigh any mitigating circumstances. Nothing in the forms indicates to the jury that a mitigating circumstance must be found unanimously before it may be considered in the weighing process. The potential for misunderstanding is not present in the Arkansas forms as it is in the Maryland forms. Therefore, we reject the appellant's argument.

The appellant's next major argument concerns the jury selection process. Citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), he claims it was error to exclude two venirepersons for cause since they did not make it unmistakably clear that they would automatically vote against the death penalty if selected.

The standard for determining if a venireperson should be excused for cause in this situation is no longer whether the venireperson makes it unmistakably clear that he or she would automatically vote against the death penalty. Instead, the court should decide if the juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. It is no longer necessary that the juror's bias be shown with unmistakable clarity. Instead, great deference is given to the trial judge who sees and hears the potential jurors. The Court in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), clarified its holding in Witherspoon to impose this more flexible standard, as we have recognized. See Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

The trial judge committed no error in excusing the jurors in this case. Venireperson Lyndell Robinson waivered back and forth between saying she "probably could" impose the death penalty and that she did not believe in the death penalty. The judge finally excused her on his own motion. His decision was based on her inability to give a consistent answer to the death penalty question and on her response which indicated she would be led by other members of the jury rather than make her own decision.

Venireperson Rosemary Horner started out saying she was against the death penalty. When asked if she could impose the penalty, she replied "I guess I could if I had to," but that she didn't really want to. Later she said she "guessed" she could consider it and could keep an open mind "if I had to." She was asked if she would refuse to vote for the death penalty no matter what and replied "no," and finally said she could vote for the death penalty "if I had to." The trial court was concerned that Mrs. Horner's continuous response of "if I had to" indicated a person that might not be able to consider the death penalty even if the evidence justified it. Giving considerable deference to the trial judge's ability to see and hear Mrs. Horner, we hold her excusal was not error.

Next, the appellant argues that he was forced to use peremptory challenges on nine venirepersons when the judge refused to excuse them for cause. In deciding whether a defendant's right to an impartial jury has been violated, the focus should not be on a juror who was peremptorily challenged, but on the persons who actually sat on the jury. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). The appellant does not contend that any persons who sat on the jury should have been excluded for cause. He received the impartial jury to which he is entitled and only complains of the loss of peremptory challenges. Under Ross v. Oklahoma, which was decided several months before this trial took place, that is not reversible error. See also Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986).

The appellant claims next that his death sentence should be set aside because the jury ignored evidence of mitigating circumstances. The jury did find that one mitigating circumstance existed, which was that Pickens had suffered an unstable childhood and violence in his teenage years. However they did not find evidence of youth and domination by another person or of any accomplishments since incarceration, despite the fact that Pickens presented testimony on these matters.

Pickens was twenty-one years old in 1975 when he and two other men robbed a grocery store in Casscoe. Nine people who were in the store at the time were crowded into a small room while the robbery took place. When Pickens and the others determined that there was no room in which they could lock up their victims, they opened fire on them and shot them repeatedly as they lay helplessly on the floor. Two people were killed and five others were seriously injured.

At the sentencing hearing, one of the victims, Jerry Lockridge, testified that Pickens fired first, shooting Wes Noble at point blank range. Other shots, fired by Pickens or the others, then followed in rapid succession until the gun was emptied. The gun was then reloaded and at least one more shot was fired. Lockridge said, "during the entire time I was there, ... Mr. Pickens was the individual doing the talking ... he's the one that told me to lay down on the floor ... he was the one that did the talking to Mr. Goacher when they found the money." Lockridge said he perceived Pickens as the one in...