Pickens v. State

• Decision Date: 01 June 1987
• Docket Number: No. CR,CR
• Citation: 292 Ark. 362,730 S.W.2d 230
• Parties: Edward Charles PICKENS, Appellant, v. STATE of Arkansas, Appellee. 86-42.
• Court: Arkansas Supreme Court

Page 230

730 S.W.2d 230

292 Ark. 362

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

No. CR 86-42.

Supreme Court of Arkansas.

June 1, 1987.

Achor & Rosenzweig by Jeff Rosenzweig, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

On October 20, 1975, several people were shot in a robbery of a grocery store in Arkansas County. Three people were charged in the case, one being appellant. Venue for appellant was changed to Prairie County, where appellant subsequently was convicted of the capital felony murder of Wesley Noble, one of the customers in the store. Appellant was sentenced to death. The conviction and sentence were upheld in Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977). In Pickens v. Lockhart, 714 F.2d 1455 (8th Cir.1983), appellant's death sentence was vacated because of ineffective assistance of counsel, and remanded to state court to permit it to reduce appellant's sentence to life without parole or to conduct a new sentencing procedure. A resentencing trial took place in Prairie County Circuit Court in September 1985, and appellant was again sentenced to death. He appeals this new sentence, listing ten points for reversal. Some of these ten points include an additional number of sub-issues or reasons why appellant claims this cause should be reversed. Because we agree with appellant's first argument, we decide and discuss only those points which are required for the remand and retrial of this case.

Appellant's first argument centers on his having been found guilty of capital murder, after which, the jury, during the penalty phase, unanimously imposed the death sentence. In doing so, the jury was required to find that the aggravating circumstances of the murder outweighed all mitigating circumstances found to exist and the aggravating circumstances justified a sentence of death beyond a reasonable doubt. Ark. Stat. Ann. §§ 41-1301(3)(4) and -1302(1) (Repl. 1977). Appellant argues that the trial court erred in limiting appellant's proof concerning mitigating circumstances to those circumstances that existed in October 1975, the time of the murder. In this respect, appellant contends the trial judge should have allowed him to introduce the testimony of various witnesses regarding character, rehabilitation, adjustment to prison and good works he had undergone or performed since the murder occurred.

In support of this argument, appellant relies upon the Supreme Court's recent holding in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In Skipper, the trial court excluded the testimony of two jailers and a "regular visitor" regarding the defendant's good behavior while he was in jail for seven months awaiting trial. The Supreme Court held the trial court's exclusion of such testimony denied Skipper his right to place before the sentencer relevant evidence in mitigation of punishment. The Court said: "Although it is true that any such inferences would not relate specifically to petitioner's culpability for the crime he committed, [cite omitted], there is no question but that such inferences would be 'mitigating' in the sense that they might serve 'as a basis for a sentence less than death.' " 106 S.Ct. at 1671.

The State argues the Skipper decision should be limited to its facts and suggests a temporal limit exists that precludes a defendant from offering mitigating circumstances which arise after the jury decides the defendant is guilty of capital murder. The State submits to construe the Skipper holding otherwise would permit defendants, who are able to extend their appeals and post-conviction relief processes the longest, an opportunity to collect evidence in mitigation that, in time, is far removed from the circumstances of the crime, as well as from what their characters were when they committed the offense. Such an open-ended procedure, the State suggests, bestows on some death-row inmates the opportunity to accumulate mitigating evidence while others may not be so fortunate. In sum, the State concludes that to permit such erratic opportunities to present additional, post-sentence mitigation would produce capricious, arbitrary and freakish results in the application of the death penalty in Arkansas for years.

While the State's argument seems based on sound logic and reason, its position is not unlike the one argued to and rejected by the Court in the Skipper case. The Skipper majority Court's holding, and its effect on the mitigating evidence issue before us now, can best be understood by first reading Justice Powell's concurring opinion, joined in by then-Chief Justice Burger and Justice Rehnquist. Those concurring Justices clearly stated that they joined in reversing the South Carolina trial court not because it excluded "relevant mitigating evidence" but only because the petitioner was not allowed to rebut evidence and argument used against him. Otherwise, the concurring Justices strongly disagreed with the majority Court holding that a defendant's conduct after the crime should be considered "mitigating evidence" and that the sentencer must consider such conduct under the Constitution. Justice Powell concluded:

I see no reason why a State could not, consistent with these principles, exclude evidence of a defendant's good behavior in jail following his arrest, as long as the evidence is not offered to rebut testimony or argument such as that tendered by the prosecution here. Such evidence has no bearing at all on the "circumstances of the offense," since it concerns the defendant's behavior after the crime has been committed. (Emphasis supplied.)

Again, the majority Court in Skipper rejected Justice Powell's expressed views that a state should have the right to exclude evidence of a defendant's conduct while awaiting trial or sentencing. In doing so, the majority placed emphasis not on the defendant's culpability for the crime he committed, but instead it held the sentencer should be able to consider any aspect of a defendant's character or record or any of the circumstances of the offense that the defendant proffers "as a basis for a sentence less than death." It said further that evidence that the defendant would not pose a danger if spared (but incarcerated) must be potentially mitigating.

We believe the Skipper decision mandates, in clear terms, that any relevant mitigating evidence concerning a defendant's character should not be excluded. That evidence may include, as the situation here, the defendant's behavior and conduct that existed not only before and at the time of the crime, but also that which occurred before sentencing and during the period of post-conviction relief, should a later resentencing occur. Accordingly, we reverse and remand this cause for resentencing to be conducted consistent with the Skipper holding and this court's opinion.

Appellant raises one other meritorious argument. In this respect, appellant argues the trial court erred in refusing to excuse certain jurors for cause, two of them because they indicated they would automatically impose the death penalty if appellant were convicted of murder. The State made every effort to rehabilitate one of those two jurors by leading him to say, "No, sir," when asked, "Now, we have to be fair, so in the other vein, life without parole is also a possible penalty, so you haven't got your mind made up at all that all capital murder deserves [the] death penalty?" Even after such efforts by the prosecutor, this witness repeatedly said that if appellant (or anyone) was guilty of murder (or rape), "I would burn them" or "be for the death penalty." As we pointed out in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), a prospective juror's candid answers cannot be overcome merely by routine responses, and there is a point beyond which such a juror cannot be rehabilitated. We believe that situation occurred here and, accordingly, presents another reason why this cause must be reversed. ¹

The Supreme Court has said that a venireman should not be excluded unless he is irrevocably committed to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. See Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983) (quoting from Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976)). By the same token, a venireman who is automatically committed to imposing the death penalty is, for the defense, good cause for that juror's exclusion from service. Clearly, proper inquiry on voir dire in the matter would be to ask the veniremen if they would first consider and weigh the aggravating and mitigating circumstances involved when determining whether death or life imprisonment without parole should be imposed.

Before turning to appellant's other points, we mention briefly those we do not reach. Appellant argues that the jurors, in rendering appellant's sentence, erroneously found the appellant had presented no evidence of mitigating circumstances. If error occurred in this instance, such error may readily be avoided at the retrial and we need not discuss it.

Similarly, we need not reach appellant's contention that the trial court erred in permitting the jury to consider the aggravating circumstance that appellant committed capital murder for pecuniary gain. Appellant presents a two-pronged argument: (1) the jury, which determined appellant's guilt at the original trial, also found that the murder the appellant committed was not for pecuniary gain, and appellant urges that to allow another jury, upon resentencing, to consider pecuniary gain as an aggravating circumstance violates the principle of double jeopardy; and (2) citing Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985), appellant argues his conviction was for robbery-murder, a crime that...