concurring. I stijudgment ce, case should be affirmed, but I write to clarify an issue with regard to the sentencing forms filled out by the jury. The majority seems to say that Form 2 C was filled out incorrectly by the jury that sentenced Mr. Jackson to death, and cites to Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997), for the proposition that the only sentencing form needed to justify a death sentence is Form 3, which sets out the statutory requirements of Ark. Code Ann. § 5-4-603 (Repl. 1997). I must respectfully disagree with the majority on two points.
First, this court did find in Jones, supra, that the jury correctly completed Form 3, and we held that this satisfied the statutory requirement that the jury must find aggravating circumstances outweigh mitigating circumstances in order to return a sentence of death. However, that holding hinged on the fact that the jury considered mitigation in its decision, as evidenced by the jury’s completion of Form 2, albeit incorrectly. This point was crucial to our decision in Jones, because to decide that Form 3 alone is enough to justify a death sentence would be to render Form 2 superfluous. The three forms must be read together — Form 1, which considers aggravators, Form 2, which considers mitigators, and Form 3, which balances the aggravators against the mitigators. Only because the Jones jury had considered mitigation on its Form 2, was the correctly completed Form 3 enough to satisfy the statutory requirements. Form 3, alone, would not have been enough to meet the requirements.
Second, I must disagree with the majority’s implication that Form 2 was incorrectly filled out by the Jackson jury. The jury originally checked Section D of Form 2, which stated that no evidence of mitigation was presented by either party during the trial. Because evidence of mitigation had been presented, the trial court realized the mistake and correctly instructed the jury to return to the jury room and correct the form. Form 2 directed the jury to leave Section D blank if there was any evidence of mitigation; and, if the evidence of mitigation was not enough to constitute mitigating circumstances, Section C was to be checked. The jury did exactly as instructed by Form 2 and checked the box at the top of Form 2 Section C, that read as follows:
C. ( ) There was evidence of the following circumstances, but the jury unanimously agreed that they were not mitigating circumstances
This section was then followed by a list of three possible mitigating circumstances. No instruction on the form stated that it was necessary to check off the individual mitigators. Presumably, if evidence of only one or two had been found, those mitigators would have needed a check mark to distinguish them from the others. In the instant case, the jury only checked the space beside the letter “C,” and then signed the form. Form 2 as filled out by the Jackson jury can thus be read as a statement by the jury that, while evidence of all three of the listed mitigators was presented, none of them were considered by the jury to rise to the level of mitigating circumstances. I cannot say that Form 2 was completed incorrecdy by the Jackson jury, when there was no instruction on the form that required the jury to check anything other than Section C, which they did.
Because I believe that the jury was required to complete all three forms, not merely Form 3, and because I believe the jury correctly completed Form 2 pursuant to the instructions by the judge and those on the form itself, I concur with the majority in affirming the trial court’s order denying postconviction relief under Ark. R. Crim P. 37 (2003).