dissenting. The first duty and responsibility of this court is to uphold our statute, if possible. See Phillips v. Giddlings, 278 Ark. 368, 646 S.W.2d 1 (1983); State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980). Rather than do that, the majority has instead chosen to be critical of the way the United States Supreme Court has dealt with the question. The majority has not even tried to uphold the constitutionality of the statute, because if it had, it would find ample authority to do so.
The United States Supreme Court has held the exact language in our statute to be constitutional, and there was no equivocation by the court in its decision. See Proffitt v. Florida, 428 U.S. 242 (1976). The Supreme Court of Florida used the following language to describe the heinous crime: “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” See Proffit v. Florida, supra; Alford v. State, 307 So. 2d 433 (Fla. 1975).
Since that definition or standard has been approved by the Supreme Court of the United States, it simply makes good sense for us to adopt it as our standard. Just as we compare death sentences on appeal, we could apply this standard to each case in which the jury finds the aggravating circumstance in question to exist. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Mississippi easily found that its juries could understand what an especially heinous crime is, and I have no doubt that Arkansas juries can also decide if a crime is especially heinous, atrocious, or cruel. See Washington v. State, 361 So. 2d 61 (Miss. 1978), cert. denied, 441 U.S. 916 (1979).
The majority says if it attempts to do its duty, it might end up like the Oklahoma court with inconsistent decisions. The majority also engages in a good deal of intellectual wool gathering and has created an intellectual legal fog where none exists. The fact is that the majority’s decision is without precedent and contrary to every decision every court has made regarding the question, which is: can the phrase “especially heinous, atrocious, or cruel” be understood and applied by jurors, and applied according to some acceptable standard by the courts? The answer in every case thus far has been yes. The majority’s decision seems to be based on a law review article, a federal appeals court decision saying Oklahoma will not do what it said it would do, and a refusal to face the fact that the United States Supreme Court has said this language is not unconstitutionally vague.
The law cannot always be tied into a neat package for display in the parlor of nice people; sometimes it has raw edges. Our duty is to take it as we find it, not as we would like it to be. We should remember we are an appellate court, not a debating society. This is not a matter of what this court cannot do, it is what this court will not do, which I respectfully submit is its duty.
Regarding the crime committed by Wilson in this case, it was undoubtedly especially heinous, atrocious and cruel. Wilson casually strangled his victim after he raped her. She did not die instantly but lived for several minutes. Her suffering had to be immeasurable with her brain exploding in fear, terror, and pain; her last moments were cruel beyond comparison. It was by any measure a pitiless crime and the victim was unnecessarily tortured. Within hours, Wilson sought out another victim, beat her senseless and raped her.
Ronald Wilson received a fair trial and was sentenced to die under laws that are constitutional. By all rights he should pay the penalty the law requires.
I would affirm his conviction and the sentence of death.
Glaze, J., joins in the dissent. 752 S.W.2d 762 William R. Simpson, Jr., Public Defender, by: Thomas B. Devine III, for appellant. Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.