concurring. Because I would affirm both the conviction and sentence in this case, I must respectfully dissent from the portion of the majority opinion that reverses Camargo’s case for resentencing.
During the penalty phase, after being instructed by. the trial court, the jury first considered, with respect to each victim, Form One, which set forth two possible aggravating circumstances. The two aggravating circumstances listed were that Camargo had previously committed a felony involving violence, and that, during the commission of the murder, he knowingly created great risk of death to a person other than the victim. The jury unanimously found that both of these aggravating circumstances existed. The jury then proceeded to Form Two, which required them to determine whether mitigating circumstances were shown to exist. The jury unanimously found that the evidence showed the mitigating circumstance that Camargo adjusted well to confinement.
Next, the jury proceeded to Form Three, entitled “Conclusions.” This is the form in dispute. The form contains the following three sections:
(a) ( ) One or more aggravating circumstances did exist beyond a reasonable doubt, at the time of the commission of the capital murder.
(b) (X) The aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found by the jury to exist.
(c) ( ) The aggravating circumstances justify beyond a reasonable doubt a sentence of death.
As indicated in the majority opinion, the jury only marked (b) on Form Three. The majority concludes, however, that because the jury failed to mark (a) and (c) a reversal of the death sentence is mandated due to a failure to comply with Ark. Code Ann. § 5-4-603 (Repl. 1993). I strongly disagree.
I do not dispute that, pursuant to § 5-4-603, in order for the death penalty to be imposed, the jury must unanimously return written findings that (1) aggravating circumstances exist beyond a reasonable doubt; (2) aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and (3) aggravating justify a sentence of death beyond a reasonable doubt. Where I depart from the majority is that I do not agree that the statute mandates that the jury record all these written findings on Form Three. From my reading of the statute, it only requires that these written findings be made.
In this case, the jury made the first written finding on Form One, when it unanimously found that two aggravating circumstances existed beyond a reasonable doubt at the time of the murder. It is undisputed that, on Form Two, the jury made the second written finding that the aggravating circumstances outweighed beyond a reasonable doubt all mitigating circumstances found to exist. Finally, on Form Four, the verdict form, the jury made the written finding that, after careful deliberation, they determined that Camargo shall be sentenced to:
( ) Life imprisonment without parole.
(X) Death.
The form instructed the jury that, if they returned a verdict of death, each juror was required to sign the verdict. The jury was instructed that they were not to sign this form if they did not unanimously agree that the aggravating cirumstances justified a sentence of death beyond a reasonable doubt. The signature of each of the twelve jurors in the case appears on the form. In my view, by signing this form, the jury made the third required written finding that the aggravating circumstances justified a sentence of death beyond a reasonable doubt.
If there was any doubt regarding whether the jury unanimously decided that Camargo should be put to death for the two murders, it was resolved when the jury was individually polled as to whether this was their verdict, and each answered in the affirmative. Indeed, the most troubling aspect of this case is that when the trial court read Form Three and noted that the jury had marked (b) only, then specifically asked the attorneys if there was any question, both attorneys replied, “No, your honor.” The majority employs the Wicks exception to conclude that no objection was required. I disagree that this exception applies in this case. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 154 (1980), this court discussed this exception as follows:
In two cases in which the death penalty was imposed, we did not require an objection to the trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself. In the earlier case the court failed to require the jury to find the degree of the crime, as required by the statute, so that the jury might have imposed the death penalty for a homicide below first-degree murder. Wells v. State, 193 Ark. 1092, 104 S.W.2d 451 (1937), In the later case the trial court apparently failed to tell the jury that it had the option of imposing a life sentence. Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943).
270 Ark. at 785-786. In the present case, the failure of the jury to check (a) and (c) on Form Three was brought to the attention of the attorneys by the trial court — counsel for Camargo simply waived any objection to the incomplete form. This is not a case where the jury failed to determine the degree of the crime, and this is not a case where the jury was not informed that it had the option of imposing a sentence of life imprisonment without parole. This was a case where each of the twelve jurors signed a verdict form recommending that Camargo be sentenced to death, and where each juror orally confirmed that this was his or her verdict.
The unfortunate practical implication of the majority’s decision today is that, when jury forms are left incomplete in the future, a defendant similarly situated is encouraged to stay quiet, wait for a reversal of his death sentence, and hope that, on remand, the State will either offer a fife sentence or that another jury may show mercy. Because I cannot ignore this jury’s obvious decision to recommend a death sentence for Camargo, I respectfully dissent.
Glaze, J., joins.