dissenting. Because I find that it is impossible to determine whether the jury complied with Ark. Code Ann. § 5-4-603 (Repl. 1997) in its imposition of the death penalty, and because I do not believe that the jury’s in-court statements were sufficient to cure the inconsistencies in the verdict forms, I respectfully dissent.
Arkansas Code Annotated § 5-4-603 provides:
(a) The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.
Id.
In the case now before us, inconsistencies appear on the verdict forms used during the sentencing phase of Robert Robbins’s trial. These inconsistencies make it impossible to determine whether the jury performed the procedure articulated in Ark. Code Ann. § 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 “any factor or factors checked in this section should not be checked again in any other section.” 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. § 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. § 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’s death sentence.
The majority suggests that the inconsistencies in the verdict forms can be corrected by the jury’s in-court affirmation of their findings. This analysis is misplaced because the jury’s 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’s 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.
Fundamentally, I am unwilling to join in the majority’s view that a jury’s 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.
In 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).
I respectfully dissent.