{ "id": 5368971, "name": "Robert A. ROBBINS v. STATE of Arkansas", "name_abbreviation": "Robbins v. State", "decision_date": "2004-02-26", "docket_number": "CR 98-1394", "first_page": "225", "last_page": "236", "citations": [ { "type": "official", "cite": "356 Ark. 225" }, { "type": "parallel", "cite": "149 S.W.3d 871" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "340 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365169 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0255-01" ] }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-91-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "341 Ark. 759", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257701 ], "weight": 2, "year": 2000, "pin_cites": [ { "parenthetical": "affirming death sentence where jury found one aggravating factor and one mitigating circumstance, and concluded that the aggravator justified beyond a reasonable doubt a sentence of death" }, { "parenthetical": "affirming death sentence where jury found one aggravating factor and one mitigating circumstance, and concluded that the aggravator justified beyond a reasonable doubt a sentence of death" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0759-01" ] }, { "cite": "319 Ark. 506", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453569 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0506-01" ] }, { "cite": "322 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447518 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0336-01" ] }, { "cite": "519 U.S. 968", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11687328, 11687296, 11687368, 11687401, 11687561, 11687692, 11687439, 11687185, 11687602, 11687221, 11687157, 11687257, 11687483, 11687518, 11687647 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0968-06", "/us/519/0968-05", "/us/519/0968-07", "/us/519/0968-08", "/us/519/0968-12", "/us/519/0968-15", "/us/519/0968-09", "/us/519/0968-02", "/us/519/0968-13", "/us/519/0968-03", "/us/519/0968-01", "/us/519/0968-04", "/us/519/0968-10", "/us/519/0968-11", "/us/519/0968-14" ] }, { "cite": "80 F.3d 1226", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7642725 ], "opinion_index": 0, "case_paths": [ "/f3d/80/1226-01" ] }, { "cite": "302 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884296 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ark/302/0371-01" ] }, { "cite": "324 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159133 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0178-01" ] }, { "cite": "329 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236254 ], "weight": 5, "year": 1997, "pin_cites": [ { "page": "69-70" }, { "page": "71", "parenthetical": "emphasis added" }, { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ark/329/0062-01" ] }, { "cite": "317 Ark. 350", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443815 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ark/317/0350-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-603", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "476 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12814 ], "year": 1986, "pin_cites": [ { "parenthetical": "indicating that errors relating to mitigating circumstances are prejudicial under any standard" } ], "opinion_index": 0, "case_paths": [ "/us/476/0001-01" ] }, { "cite": "322 Ark. 613", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447536 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0613-01" ] }, { "cite": "114 S.W.3d 217", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 1155508, 36029 ], "year": 2003, "pin_cites": [ { "parenthetical": "Robbins VI" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0556-01", "/ark/354/0001-01" ] }, { "cite": "353 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155508 ], "year": 2003, "pin_cites": [ { "parenthetical": "Robbins VI" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0556-01" ] }, { "cite": "342 Ark. 262", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342400 ], "weight": 3, "year": 2000, "pin_cites": [ { "parenthetical": "Robbins V" }, { "parenthetical": "Robbins V" }, { "page": "265-67" } ], "opinion_index": 0, "case_paths": [ "/ark/342/0262-01" ] }, { "cite": "339 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130686 ], "weight": 3, "year": 1999, "pin_cites": [ { "parenthetical": "Robbins IV" }, { "parenthetical": "Robbins IV" } ], "opinion_index": 0, "case_paths": [ "/ark/339/0379-01" ] }, { "cite": "337 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1241033 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/337/0227-01" ] }, { "cite": "296 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892781 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0181-01" ] }, { "cite": "336 Ark. 377", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51246 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/336/0377-01" ] }, { "cite": "335 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862805 ], "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/335/0380-01" ] }, { "cite": "339 Ark. 314", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130694 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/339/0314-01" ] }, { "cite": "428 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176749 ], "weight": 3, "year": 1976, "opinion_index": 1, "case_paths": [ "/us/428/0153-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-603", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "year": 1993, "opinion_index": 1 }, { "cite": "339 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130686 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/339/0379-01" ] }, { "cite": "296 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892781 ], "weight": 2, "year": 1988, "pin_cites": [ { "parenthetical": "all holding that death-penalty cases are different from other criminal cases, due to the finality of the punishment imposed" }, { "parenthetical": "all holding that death-penalty cases are different from other criminal cases, due to the finality of the punishment imposed" } ], "opinion_index": 1, "case_paths": [ "/ark/296/0181-01" ] } ], "analysis": { "cardinality": 828, "char_count": 21410, "ocr_confidence": 0.738, "pagerank": { "raw": 6.203064794556805e-08, "percentile": 0.384180313215172 }, "sha256": "2878adecaf4d995b3dcde209b309945f0030bc1a3a42d4ac4b498e201d6ffc5b", "simhash": "1:4a4ca87bf2ac7c01", "word_count": 3396 }, "last_updated": "2023-07-14T17:43:53.781338+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Thornton, J., dissents." ], "parties": [ "Robert A. ROBBINS v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Robert Robbins was convicted of capital murder and sentenced to death in 1998 for the murder of his ex-girlfriend, Bethany White. At trial, Robbins represented himself, with the assistance of court-appointed standby counsel, and he sought the death penalty for himself. Initially, Robbins was convicted and sentenced to death; he waived his right to appeal, and we held his waiver was proper. See State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998) (per curiam) (Robbins I). In State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999) (per curiam) (Robbins II), we clarified that Robbins had also waived his right to seek post-conviction relief under Ark. R. Crim. P. 37.5. Following a request by Robbins\u2019s mother to re-examine the case, this court subsequently recalled the mandate, stayed Robbins\u2019s execution, and ordered briefing in order to determine whether Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), should be overruled and whether the court should impose a mandatory review for trial error in all death penalty cases, regardless of whether the defendant desires such a review. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (per curiam) (Robbins III).\nUpon rebriefing, this court overruled the Franz case in part, and held that this court has an affirmative duty to automatically review the record in all death-penalty cases for egregious and prejudicial errors. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999) (Robbins IV). We remanded the case for preparation of the record, and appointed counsel to assist in our review. Id. Robbins\u2019s appointed counsel filed a brief in compliance with this court\u2019s direction, and in State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000) (Robbins V), we held that no prejudicial or plain error had occurred, and all fundamental safeguards had been followed. We affirmed Robbins\u2019s conviction and sentence of death.\nRobbins subsequently pursued federal habeas corpus relief. In his habeas proceedings, Robbins argued that he was entitled to relief because the jury rendered inconsistent findings regarding mitigating circumstances; the State responded that the claim was procedurally barred from habeas review because the issue was never raised in Robbins\u2019s state court proceedings. The federal court ruled that Robbins\u2019s claim that the jury returned inconsistent findings on its penalty-phase verdict had not yet been exhausted in state court. Because Robbins had not exhausted his state remedies, the federal court dismissed his petition for writ of habeas corpus.\nFollowing the federal court\u2019s dismissal of his petition, Robbins filed a motion to re-open his case in this court. In that motion, he argued that the case involved a violation of his rights under the Eighth and Fourteenth Amendments based on the jury\u2019s inconsistent and irreconcilable findings regarding mitigating circumstances. Specifically, he claimed, on Form 2A of the verdict forms, the jury unanimously found that one mitigating\u2019 circumstance existed; however, on Form 2C, the jury also unanimously found that this same nfitigator did not exist. In his motion, Robbins suggested that, despite this court\u2019s stated intent to review the entire record of his trial and sentencing proceedings for prejudicial error, such a review had not occurred because neither the court nor his appointed counsel noticed this alleged error. We granted the motion to reopen the case and issued a writ of certiorari, ordering that the record be supplemented with the original verdict forms. Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003) (Robbins VI). The original verdict forms and the briefs of the parties are now before us, and we are now able, to determine whether error occurred with respect to Robbin\u2019s sentencing.\nFollowing the sentencing phase of Robbins\u2019s capital-murder trial, the jury completed the sentencing verdict forms that caused Robbins to be sentenced to death. The jury first completed Form 1, pertaining to aggravating circumstances, by checking off as an aggravator the fact that the \u201ccapital murder was committed in an especially cruel or depraved manner.\u201d With respect to mitigating circumstances, the jury also filled in Form 2. The original verdict forms clearly indicate that the jury checked Form 2A, whereby the jurors \u201cunanimously find that the following mitigating circumstance^) probably existed: (/) Robert A. Robbins has no significant history of prior criminal activity (at the time of the murder).\u201d Form 2B was left blank. Form 2C then provides as follows:\nThere was some evidence presented to support the following circumstance(s). However, having considered this evidence, the jury unanimously agreed that it was insufficient to establish that the mitigating circumstance(s) probably existed.\n( ) Robert A. Robbins has no significant history of prior criminal activity (at the time of the murder).\nThe space between the parentheses appears as though the jury either used \u201cwhite-out\u201d or an eraser to obliterate the check mark that was once there. This Form 2 instruction is appended to this opinion.\nAfter Form 2, the jury then completed Form 3, which contains the following conclusions of the jury:\n(a) (/) The State has proved beyond a reasonable doubt one or more aggravating circumstances.\n(If you do not unanimously agree to check paragraph (a), then skip (b) and (c) and sentence Robert A. Robbins to life imprisonment without parole on Form 4.)\n(b) (/) The aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found by any juror to exist.\n(If you do not unanimously agree to check paragraph (b), then skip (c) and sentence Robert A. Robbins to life imprisonment without parole on Form 4.)\n(c)(/) The aggravating circumstances justify beyond a reasonable doubt a sentence of death.\n(If you do not unanimously agree to check paragraph (c), then sentence Robert A. Robbins to life imprisonment without parole on Form 4.)\nThe jury clearly checked each of the above three boxes.\nFor relief, Robbins relies heavily on Willet v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). In Willett, the jurors unanimously found and checked three mitigating circumstances probably existed at the time of the murder. Fiowever, on Form 2C, the jurors found and checked the same three circumstances, but then unanimously agreed that they were not mitigating circumstances. In response to the State\u2019s argument that such error was harmless, \u201cbecause the jurors appeared in open court and orally confirmed their death-sentence verdicts,\u201d this court first agreed with Willett that subsections A and C of Form 2 are mutually exclusive. Willett, 322 Ark. at 628. The court then held as follows:\nWe are somewhat inclined to conclude that the jury\u2019s error in completing Form 2 was harmless for three reasons. First, in \u201cForm 3 \u2014 Conclusions,\u201d the verdict form pertaining to the weighing of aggravating and mitigating circumstances, the jurors concluded that the aggravating circumstance outweighed beyond a reasonable doubt any mitigating circumstance found by any juror to exist. Second, also in Form 3, the jury concluded the aggravating circumstance justified beyond a reasonable doubt the death sentence. Third, as the state contends, the jurors confirmed in open court that the two verdicts of death by lethal injection were indeed their verdicts.Therefore, even if we assume the jury concluded in Form 2 that the three mitigating circumstances probably existed, we could conclude, on the basis of Form 3, that they did not outweigh the aggravating circumstance. However, we are not aware of any authority that permits the application of a harmless error analysis to mitigating circumstances. See Skipper v. South Carolina, 476 U.S. 1 (1986) (indicating that errors relating to mitigating circumstances are prejudicial under any standard). Moreover, this court can perform the harmless error analysis in Ark. Code Ann. \u00a7 5-4-603(d) (Repl. 1993) only if the jury found no mitigating circumstances. Greene, 317 Ark. 350, 878 S.W.2d 384. On this record, it is impossible to discern whether the jury found any mitigating circumstances. Therefore, we reverse the ... sentence [of\\ death and remand for resentencing.\nId. at 628 (emphasis added).\nThis court, in Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997), subsequently retreated from Willett\u2019s interpretation of Skipper. This court in Jones clarified its holding in Willett, stating that the parenthetical explanation of Skipper \u201cwent beyond the actual holding of the case.\u201d In Jones, the jury also submitted conflicting verdict forms, but there the confusion was between Form 2B and Form 2C. On Form 2B, the jury had indicated that one or more of the jurors believed that five mitigating circumstances probably existed, but they did not unanimously agree that those mitigating circumstances probably existed. On Form 2C, the jury checked off three of the same factors, indicating that there was some evidence presented to support' the mitigating circumstances offered, but the jury unanimously agreed that the evidence was insufficient to establish that the mitigating circumstances probably existed. The Jones court held that, unlike Willett, it was not impossible to determine whether the jury found any mitigating circumstances; the jurors had found three, as indicated on Form 2A, and these did not conflict in any way with the confusing circumstances checked off on Forms 2B and 2C. Jones, 329 Ark. at 69-70.\nThe Jones court further took the opportunity to \u201cclarify our previous interpretations of Ark. Code Ann. \u00a7 5-4-603(d) [(Repl. 1997)],\u201d which provides as follows:\n(d) On appellate review of a death sentence, if the Arkansas Supreme Court finds that the jury erred in finding the existence of any aggravating circumstance or circumstances for any reason and if the jury found no mitigating circumstances, the Arkansas Supreme Court shall conduct a harmless error review of the defendant\u2019s death sentence. The Arkansas Supreme Court shall conduct this harmless error review by:\n(1) Determining that the remaining aggravating circumstance or circumstances exist beyond a reasonable doubt; and\n(2) Determining that the remaining aggravating circumstance or circumstances justify a sentence of death beyond a reasonable doubt.\n(Emphasis added.) In readdressing \u00a7 5-4-603 (d), the Jones court wrote the following:\nWe have previously interpreted this provision to allow us to conduct a harmless-error analysis only if the jury found no mitigating circumstances. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Kemp v. State, [324 Ark. 178, 919 S.W.2d 943 (1996)]. However, a plain reading of this provision reveals that it applies when the jury makes an error in finding that an aggravating circumstance exists. There was no such error in this case. The statute simply prescribes a set of parameters where this court must engage in a harmless-error analysis. It does not preclude us from conducting harmless-error analysis in other situations.\nJones, 329 Ark. at 71 (emphasis added).\nWith respect to Willetts citation to Skipper, the Jones court also explained that, \u201c[w]hile we agree that the rule in Skipper provides that the exclusion of relevant mitigating evidence from the jury\u2019s consideration can never be harmless, we do not read Skipper to preclude the application of a harmless-error analysis to errors relating to the jury\u2019s consideration of that evidence.\u201d Jones, 329 Ark. at 70.\nWe further note our opinion in Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), which the Jones court found to be controlling. In Wainwright, this court was presented with a situation in which the jury, on one verdict form, had unanimously found a mitigating factor existed in the fact that Wainwright did not resist when arrested; on another form, it found that this same mitigating factor did not exist. In resolving the question, this court wrote the following:\nAlthough the jury may have been inconsistent on this factor, it was clear in unanimously finding that three aggravating circumstances existed at the time appellant committed the murder. On the other hand, even giving the appellant the benefit of the mitigating circumstance discussed above, the jury only determined that two mitigating circumstances existed. Upon individual polling, each juror stated that he or she had voted for the death penalty. Obviously, the jury found the aggravating circumstances outweighed those mitigating factors, and the trial court was correct in so holding.\nWainwright, 302 Ark. at 387. The Eighth Circuit Court of Appeals ultimately affirmed this decision, holding that the jury\u2019s inconsistent findings were not arbitrary or capricious, and therefore did not rise to an Eighth or Fourteenth Amendment violation, where the jury specifically found that three aggravators outweighed beyond a reasonable doubt all mitigating circumstances. See Wainwright v. Lockhart, 80 F.3d 1226 (8th Or.), cert. denied, 519 U.S. 968 (1996).\nWe conclude that both Jones and Wainwright are controlling here. Although there was apparently an unexplained partial \u201cwhite-out\u201d in one verdict form, even if we resolve the \u201cwhite-out\u201d in Robbins\u2019s favor and conclude that the jury found one mitigating factor to exist, the jury nevertheless unanimously concluded that one aggravating circumstance existed, that the aggravating circumstance outweighed beyond a reasonable doubt the mitigating factor found to have existed, and that the aggravating circumstance justified beyond a reasonable doubt a sentence of death. To impose the death penalty, this court has held that a jury need only unanimously agree that one aggravating circumstance exists. Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995); see also Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000) (affirming death sentence where jury found one aggravating factor and one mitigating circumstance, and concluded that the aggravator justified beyond a reasonable doubt a sentence of death). Whether the jurors found the mitigating circumstance to exist or not, they nevertheless unanimously concluded that a death sentence was appropriate.\nWe also hasten to point out that, following the reading of the verdict, the trial court polled the jurors, reading the verdict form aloud as follows:\nCourt: And form two on mitigating circumstance or circumstances, [the] findings are:\nWe unanimously find that the following mitigating circumstance or circumstances probably existed: That Robert A. Robbins has no significant history of prior criminal activity at the time of the murder, again signed by the foreman.\nAre each of these findings in form one and two unanimous, that is all twelve of you agree?\nJurors: (Nodding heads up and down.)\nAfter reading the verdict, the court again asked the jurors if \u201ceach of you individually, of your own free will, execute and sign \u2014 place your signature on form four?\u201d The jurors said \u201cYes.\u201d If there was any doubt as to what the jurors intended to mark on Form 2, that doubt was resolved by the jury\u2019s answers' to the trial court. Because the jurors agreed that they had unanimously found o'ne mitigating circumstance to exist, but that the aggravating circumstance outweighed the mitigator beyond a reasonable doubt, we must conclude that any purported inconsistencies by the jury in the completing of Form 2 amounted to harmless error, and we affirm Robbins\u2019s death sentence.\nThornton, J., dissents.\nIn an intervening per curiam, we relieved Jeff Rosenzweig as counsel and appointed Lea Ellen Fowler to perform the duties outlined in Robbins IV, directing her to abstract the record and assist the court in its determination as to 1) whether any errors raised in the trial court were prejudicial to Robbins,in accordance with Ark. Code Ann. \u00a7 16-91-113(a) (1987); 2) whether any plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), had occurred; and 3) whether other fundamental safeguards were Mowed. State v. Robbins, 340 Ark. 255, 9 S.W.3d 500 (2000).\nThe facts of the case clearly supported the jury\u2019s finding of this aggravator. For a discussion of those facts, see Robbins V, 342 Ark. at 265-67.\nSection 5-4-603(d) is now found in the 1997 Replacement volume.", "type": "majority", "author": "Tom Glaze, Justice." }, { "text": "Ray Thornton, Justice,\ndissenting. Because I find that it is impossible to determine whether the jury complied with Ark. Code Ann. \u00a7 5-4-603 (Repl. 1997) in its imposition of the death penalty, and because I do not believe that the jury\u2019s in-court statements were sufficient to cure the inconsistencies in the verdict forms, I respectfully dissent.\nArkansas Code Annotated \u00a7 5-4-603 provides:\n(a) The jury shall impose a sentence of death if it unanimously returns written findings that:\n(1) Aggravating circumstances exist beyond a reasonable doubt; and\n(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and\n(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.\nId.\nIn the case now before us, inconsistencies appear on the verdict forms used during the sentencing phase of Robert Robbins\u2019s trial. These inconsistencies make it impossible to determine whether the jury performed the procedure articulated in Ark. Code Ann. \u00a7 5-4-603. Specifically, Verdict Form 1 shows that the jury found that the State proved beyond a reasonable doubt one aggravating circumstance. Verdict Form 2 A shows that the jury unanimously found that one mitigating circumstance existed. The instructions accompanying Form 2 A state that \u201cany factor or factors checked in this section should not be checked again in any other section.\u201d However, disregarding the instructions on Form 2 A, the jury inconsistently completed Form 2 C by finding that there was insufficient evidence to support the mitigating circumstance found on Form 2 A. While it appears that an unknown person made an effort to resolve this inconsistency by applying white-out across part of the checkmark shown on Form 2 C, no effort was made to determine who applied the white-out or the reason for applying the white-out. This inconsistency renders the conclusions reached on Form 3 suspect. Verdict Form 3 mirrors the language articulated in Ark. Code Ann. \u00a7 5-4-603 and requires the jury to determine: (1) that an aggravating circumstance has been established beyond a reasonable doubt; (2) that the aggravating circumstance outweighs beyond a reasonable doubt any mitigating circumstances found; and (3) that the aggravating circumstance justifies beyond a reasonable doubt a sentence of death. Because we do not know whether the jury found any mitigating circumstances, it is impossible to determine whether the jury properly engaged in the weighing process required by Ark. Code Ann. \u00a7 5-4-603. Without a record demonstrating that the jury properly weighed the aggravating circumstance against the mitigating circumstances, I believe that we cannot affirm the imposition of Mr. Robbins\u2019s death sentence.\nThe majority suggests that the inconsistencies in the verdict forms can be corrected by the jury\u2019s in-court affirmation of their findings. This analysis is misplaced because the jury\u2019s findings as stated in court were incomplete and inconsistent with the verdict forms. After returning inconsistent verdict forms, the jury was asked in open court to affirm that they unanimously found one mitigating circumstance. The trial court did not ask the jury to explain whether Form 2 C had been checked. Additionally, the trial court did not ask the jury whether it had applied white-out to Form 2 C. Instead, the trial court asked the jury to affirm that the findings on Forms one and two were unanimous. By responding in the affirmative, the jury was affirming its inconsistent findings in Section 2 A and 2 C. Thus, the jury\u2019s in-court statements did not cure the previously discussed flaws in the verdict forms, and I cannot agree that these flaws should be treated as harmless errors.\nFundamentally, I am unwilling to join in the majority\u2019s view that a jury\u2019s in-court answers to questions regarding verdict forms can be used to modify the actual findings on the verdict forms. If we allow such substitutions, verdict forms would be rendered meaningless and the sanctity of the jury room would be jeopardized.\nIn conclusion, I am forced to dissent from the majority opinion because the record in this case does not allow me to determine whether the jury met the statutorily-required weighing process before imposing the death sentence upon Mr. Robbins. Because of the obvious finality of the punishment imposed, I would require that this case be remanded for a new sentencing trial. See State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976); American Civil Liberties Union v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) (all holding that death-penalty cases are different from other criminal cases, due to the finality of the punishment imposed).\nI respectfully dissent.", "type": "dissent", "author": "Ray Thornton, Justice," } ], "attorneys": [ "Craig Lambert, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Jeffrey A. Weber, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Robert A. ROBBINS v. STATE of Arkansas\nCR 98-1394\n149 S.W.3d 871\nSupreme Court of Arkansas\nOpinion delivered February 26, 2004\n[Rehearing denied April 8, 2004.]\nCraig Lambert, for appellant.\nMike Beebe, Att\u2019y Gen., by: Jeffrey A. Weber, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0225-01", "first_page_order": 247, "last_page_order": 260 }