Roberts v. State

• Decision Date: 14 February 2013
• Docket Number: No. CR 02–22.,CR 02–22.
• Citation: 2013 Ark. 56,425 S.W.3d 771
• Parties: Karl Douglas ROBERTS, Petitioner v. STATE of Arkansas, Respondent.
• Court: Arkansas Supreme Court

2013 Ark. 56

425 S.W.3d 771

Karl Douglas ROBERTS, Petitioner

v.STATE of Arkansas, Respondent.

No. CR 02–22.

Supreme Court of Arkansas.

Feb. 14, 2013.

Deborah Anne Czuba, for appellant.

Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Petitioner Karl Douglas Roberts petitions this court to recall its mandate issued after our mandatory review of Roberts's conviction and sentence in Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). Roberts raises two allegations in support of his petitions. First, he alleges that this court's affirmance of his death sentence was directly contrary to this court's holding in Miller v. State, 2010 Ark. 1, 362 S.W.3d 264, and, thus, there has been a defect or breakdown in the appellate proceedings that warrants recall of the mandate. Second, Roberts argues that the waiver of his postconviction rights was invalid and this court's affirmance of that invalid waiver also constitutes a defect or breakdown in the appellate process warranting recall of the mandatory-review mandate. Roberts has also filed a petition to reinvest the circuit court with jurisdiction to consider a petition for writ of error coram nobis based on allegations that the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 1963). As Roberts is under a sentence of death, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(a)(2) (2012). For the reasons set forth herein, we deny both petitions.

The relevant facts are set forth in Roberts v. State, 2013 Ark. 57, 426 S.W.3d 372, handed down this same day. Accordingly, we turn to the merits of the petitions at issue here, beginning with Roberts's petition to recall this court's mandatory-review mandate. In support of his petition, Roberts argues that there was a breakdown in the appellate process in two regards. First, Roberts asserts that a breakdown occurred in his case where this court affirmed his death sentence because such affirmance is directly contrary to this court's subsequent opinion in Miller, 2010 Ark. 1, 362 S.W.3d 264. According to Roberts, his case is on all fours with this court's decision in Miller, wherein we reversed the appellant's death sentence because of the admission of improper victim-impact testimony. Second, Roberts argues that his waiver of postconviction review was invalid on numerous grounds, and this court's approval of that invalid waiver is a defect or breakdown in the appellate process. According to Roberts, recalling and reentering the mandatory-review mandate is the remedy that is necessary to restore him to the status quo.

The State counters that Roberts has failed to show any error in the admission of victim-impact testimony or that this court failed to discover such an error and, therefore, he cannot demonstrate that there was breakdown in the appellate process. The State further argues that because Roberts failed to show any defect in the direct-appeal process, this court should decline his invitation to recall the mandatory-review mandate.

This court will recall a mandate and reopen a case only in extraordinary circumstances. See, e.g., Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). There have been four cases thus far that demonstrated such extraordinary circumstances. In Robbins, we recalled the mandate because (1) Robbins cited to a decision “on all fours legally” with the issue presented; (2) federal-court proceedings had been dismissed because of an unexhausted state-court claim; and (3) it was a death-penalty case, which required heightened scrutiny. Id. at 564, 114 S.W.3d at 222–23. In making that decision, we noted that there were unique circumstances that made the case “one of a kind, not to be repeated.” Id., 114 S.W.3d at 223. However, in a separate case, this court also found that the intoxication and subsequent impairment of Rule 37.5 counsel constituted a defect in the appellate process that warranted recalling the mandate from our affirmance of the denial of Rule 37 relief. See Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006). In Wooten v. State, 2010 Ark. 467, 370 S.W.3d 475, we found that the lack of verification of Wooten's Rule 37 petition constituted a defect or breakdown in the appellate process that required a recall of the mandate. And, most recently, in Williams v. State, 2011 Ark. 534, 2011 WL 6275536, this court recalled the mandate from Williams's direct appeal after reviewing the forms for mitigators and aggravators and concluding that the jury eliminated from its consideration all evidence presented of mitigating circumstances and sentenced Williams to death based solely on the aggravating circumstance, which constituted reversible error. This court acknowledged that the error was not discovered during Williams's direct appeal and, as such, constituted a defect or breakdown in the appellate process. Id.

The question here, then, is whether we are presented with extraordinary circumstances that warrant a recall of the mandate. We have explained the necessary criteria to establish such extraordinary circumstances that warrant a recall of the mandate and refer to them as the Robbins factors. Lee, 367 Ark. 84, 238 S.W.3d 52. The factors are as follows: (1) the presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court because of unexhausted state-court claims, (3) the appeal was a death case that required heightened scrutiny. Wooten, 2010 Ark. 467, 370 S.W.3d 475.

In order to address Roberts's first alleged basis for relief, we turn to this court's decision in Miller, 2010 Ark. 1, 362 S.W.3d 264, where the appellant argued that the circuit court erred in allowing two victim-impact witnesses to tell the jury that they wanted Miller to receive the death sentence. According to the appellant, this resulted in a violation of his Eighth Amendment right to a fair trial and his Fourteenth Amendment due-process rights under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). In addressing the appellant's argument, we stated as follows:

Turning now to the merits of this argument, we note that in Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001), this court held that it was not proper for witnesses to tell the jury what the appropriate penalty should be. This court stated, “[w]e conclude that penalty recommendations from family members of the victim are not relevant as victim-impact evidence.” Id. at 535, 37 S.W.3d at 586. Key to this conclusion was this court's observation that such testimony would interfere with and be irrelevant to a jury's decision on punishment. Thus, based on Greene, we conclude, as the State concedes, that it was error for Ray Barr and Linda McCormack to testify that they desired the jury to impose the death sentence. We further conclude that this testimony was clearly contrary to Payne, 501 U.S. 808, 111 S.Ct. 2597, and resulted in a violation of Miller's Eighth Amendment rights. Family members of the victim may testify about the victim and the emotional impact of the victim's death on the family; however, they may not state “characterizations and opinions about the crime, the defendant, and the appropriate sentence.” Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir.1999) (quoting Payne, 501 U.S. at 830 n. 2, 111 S.Ct. at 2611).

Id. at 34, 362 S.W.3d at 285. Clearly, our holding in Miller that the victim-impact testimony was improper and violated the appellant's constitutional rights was the result of the two witnesses specifically requesting that the jury impose the death penalty. That is not the situation here.

Here, while there was testimony about the crime being brutal or evil, there was never testimony as to which sentence was appropriate. Rebecca DeMauro, Andria's mother, testified that [t]he effects of this brutal crime has had on me and my family is devastating.... Andi was a beautiful person who did not deserve the evil that befell her.... Because of this horrendous crime, my daughter not only lost her life but she will never go to junior high or high school.

Ann Taylor, Andria's grandmother, testified similarly that “we can't trust our own family members around our innocent children. This is what has been instilled in our lives because of this evil act.”

During the testimony of Christopher DeMauro, Andria's stepfather, Roberts objected when DeMauro testified that “[a]s a result of the horrible crime that happened to Andi, my family will never be the same.” His response was to a question by the prosecutor about how the murder had impacted Andi's family. The following colloquy then took place at the bench:

By [Defense Counsel]: Your Honor, it was your ruling that the victim impact that would come into this case and they would not make comments about the crime, the circumstances of the crime. This witness just made a comment about the horrible nature of the crime. I have to make a motion for a mistrial based on that.

By The Court: You've had this haven't you?

By [Defense Counsel]: Yes, Your Honor. It was my understanding there was not going to be any comment on the nature of the crime.

By The Court: What do you have in front of you?

By [Defense Counsel]: This is a written statement of the Defendant—I'm sorry, of the witness.

By [The Prosecutor]: Your Honor, he was not stating the details of the crime or commenting about the crime, but he's talking about the results of this crime.

By The Court: I think everyone here knows quite frankly it was a horrible crime was committed. Do you want an admonishment or anything? Can you think of anything I could say?

By [Defense Counsel]: Yes, Your Honor. I think I've got to ask that the jury be advised that in light of that they should ignore or set aside the previous comment regarding the horrible nature of the crime.

By [The Prosecutor]: The horrible crime or the horrible nature of the crime. It is actually phrased “horrible crime,” not “horrible nature of the...