dissenting. This case concerns whether the state courts or the federal courts should decide the mental-retardation issue that was raised by Engram before his trial in 1998.1 The issue was raised by Engram and developed before the circuit court, but it was not ruled on by that court. This was contrary to Act 420 of 1993, now codified at Ark. Code Ann. § 5-4-618(d)(2) (Repl. 1997), which mandates that “the court shall determine if the defendant is mentally retarded,” after the issue is raised, (emphasis added). That legislative directive was not followed in the instant case.
For this reason, I would recall the mandate and remand to the circuit court for the limited purpose of deciding the issue of mental retardation based on the record that has already been developed. By failing to do this, this court is eschewing our state responsibility, and the federal court will now be forced to relitigate the mental-retardation issue, beginning at square one. That will needlessly delay resolution of this matter.
The federal district court concluded in its remand order that “a substantial possibility exists that the Arkansas Supreme Court will recall the mandate in this case to consider [Engram’s] Atkins [v. Virginia, 536 U.S. 304 (2002) (execution of the mentally retarded is unconstitutional)] claim.” Because the claim had not previously been presented to the state court, according to the federal district court, it was affording Engram an opportunity to exhaust his state remedies in the interest of “comity and federalism” before proceeding further in federal court. By invoking the exhaustion-of-state-remedies doctrine, the federal district court adhered to its longstanding rule of giving deference to the states, but it also invoked the spirit of Congress’s Antiterrorism and Effective Death Penalty Act of 1996 and the Arkansas Effective Death Penalty Act of 1997, now codified at Ark. Code Ann. § 16-91-201 through 16-91-206 (Supp. 2003). Both the congressional act and state act provide for a comprehensive state review of death cases as an antidote to multiple federal habeas corpus reviews. It is that comprehensive state review that now is lacking owing to this court’s failure to resolve all state issues.
What the federal district court may not have known when it invoked the exhaustion doctrine is that mental retardation was in fact raised on Engram’s behalf at a pretrial hearing in state court in 1998. Prior to trial, the circuit court conducted a hearing on Engram’s competency and mental retardation. On the prosecutor’s motion, the court found Engram competent to stand trial but did not rule on whether he was mentally retarded. Again, this error was made even though testimony had been taken relating to the question ofEngram’s mental retardation and even though our state statute enacted in 1993 provides that where a motion relating to mental retardation is made, “the court shall determine if the defendant is mentally retarded.” Ark. Code Ann. § 5-4-618 (d)(2) (Repl. 1997) (emphasis added).
The majority appears to contend that a circuit court ruling on mental retardation was not really necessary, because there was testimony that Engram’s intelligence quotient in 1998 was 76 and the presumptive level for mental retardation fixed by § 5-4-618(a)(2) is 65. But that conclusion casts a blind eye to the statutory mandate that the circuit court shall rule when the issue is raised. Moreover, a 65 I.Q. is only a presumptive benchmark and is not conclusive on the issue, as the definition of “mental retardation” in § 5-4-618(a)(l) makes crystal clear. As a final note, I disagree that speculation on what the circuit court probably would have done is appropriate in a death case by an appellate court. Rather, our role should be to assure that the matter was properly ruled upon by the circuit court.
Let me hasten to underscore that my position in this case is based on the fact that the mental-retardation claim was raised after § 5-4-618(d)(2) became law in 1993 and was never decided by the circuit court. My position is not based on the Atkins v. Virginia, supra, decision or on Engram’s argument that post-Atkins, all death cases are subject to being reopened for a mental retardation evaluation. My dissent is solely based on the failure to comply with our state statute.
As already noted, it is clearly incumbent on state courts to provide a full, complete, and comprehensive review in death cases. I conclude that this review was not perfected, as required by § 5-4-618 (d)(2), because the mental-retardation issue was not resolved by the circuit court which involved the imposition of the death penalty and was a matter essential to the jury’s consideration of the death penalty. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Though no objection was made by defense counsel to the circuit court’s failure to rule on the matter, these facts fall within the first Wicks exception to our requirement that such an objection be made. This court has left no doubt that the death penalty “is a unique punishment that demands unique attention to procedural safeguards.” Robbins v. State, 353 Ark. 556, 561, 114 S.W.3d 217, 220 (2003). Like Robbins, in this case there was error committed on an issue of profound significance that was mandated by state statute.
For these reasons, I respectfully dissent.
Corbin, J., joins in this dissent.The majority opinion suggests that mental retardation was not raised at the 1998 pre-trial hearing. At the beginning of the hearing, the circuit court asked what the hearing was about and defense counsel answered: “competency, responsibility and IQ to determine whether Mr. Engram is mentally retarded.” To require a written motion as opposed to an oral motion, as the majority appears to do, needlessly exults form over substance in this highly sensitive area, especially when the circuit court knew what the hearing was about and testimony was taken on the subject of Engram’s mental ability.