dissenting. While I concur in the majority view that the Reverend Louis J. Franz lacks standing to act as next friend for Ronald Gene Simmons, I would adopt a rule for mandatory appellate review and apply it to this case.
I concede there is no express provision in our law for mandatory appeal, but it is at least arguable that our law now implicitly provides for mandatory review by this court in cases in which a sentence of death is imposed. While dictum to the contrary appears in Collins v. State, 261 Ark. 195, 211, 548 S.W.2d 106 (1977), that was not the holding and certainly does not prevent our adopting a rule for mandatory review in death cases. Moreover, in Collins this court committed itself to a proportional review where death is imposed on the defendant. Our Rule 11(f), adopted pursuant to Act 333 of 1971, states that “when the sentence is death or life imprisonment, the court must review all errors prejudicial to the appellant.” (My emphasis.) Additionally, in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we said that in a capital case if the trial court fails to instruct the jury that it has the option of returning a lesser penalty than death, that is reversible even in the absence of an objection. Keeping faith with Wicks, Collins, and Rule 11(f), mandates, I submit, appellate review of the entire record in death cases.
But whether the law now provides for mandatory appeal is beside the point, as it is plainly within the rule making power of this court to effectuate such a rule to operate immediately. If we can change our rule in a civil case to affect pending litigation, as we did in Ford Motor Credit Co. v. Nesheim, 287 Ark. 78, 696 S.W.2d 732 (1986),1 we can certainly do so where the death sentence is involved.
The adoption of such a rule, as I envision it, simply means that, notwithstanding a waiver of appeal by the defendant, this court, on information from either the Attorney General or the trial court, that a death sentence has been imposed, would issue a writ of certiorari for the record and appoint counsel to argue any errors prejudicial to the defendant. The unique severity of the death sentence and the public interest in its imposition demand nothing less.
The public’s interest and right to having a review of a death sentence is discussed in Kaine, Capital Punishment and the Waiver of Sentence Review, 18 Harv. C.R.-C.L. L. Rev. 483 (1983) (footnotes omitted):
The societal interest in ensuring that capital punishment is fairly imposed is too great to allow execution without the appellate scrutiny required by the eighth amendment
It is also inappropriate to grant complete power to a defendant’s waiver when that choice will infringe upon the constitutional rights of other citizens. The [Supreme] Court recognized this limitation on waiver in Richmond Newspapers v. Virginia, by holding that the first amendment rights of reporters and others to be present at a criminal trial outweighed a defendant’s waiver of a public trial. Similarly, an attempt to force execution by the state prior to the resolution of inquiries required by the Constitution violates that document’s protection of the public from abuse of state power.
Finally, statutory and judicial restrictions upon the ability of a capital defendant to decide whether to be present at trial or to pursue review of a sentence — decisions not generally based on specific constitutional protections — reflect the understanding that the death penalty is a matter of public as well as individual concern.
I do not question the right of a competent defendant to refrain from participating in an appeal, or to deny others the right to act in his behalf. But that right does not empower a defendant to by-pass appellate review any more than he could by-pass a trial or, if a plea of guilty is entered, a hearing on the guilty plea. These steps are basic, and where the sentence is death, appellate review is equally basic. By rejecting the opportunity to adopt a rule of mandatory review the majority has put Arkansas at odds with all but one of the thirty-seven states which have the death penalty, not an enviable position, and not one likely to endure.
On March 18, 1985, weamended Rule 2(a)(9)of the Rulesof Appellate Procedure to permit an appeal by Ford Motor Credit Co. from an order of the trial court certifying the case as a class action.