dissenting. I must respectfully dissent. I am both baffled and distressed by the conclusions reached by the majority in the instant case. I simply do not understand how the majority can determine that no error resulted from the jury finding Appellant guilty of both capital murder and second-degree murder for a single crime. Likewise, it is beyond my realm of comprehension as to how the majority can conclude that it was appropriate for the jury to convict Appellant of arson, and possibly, capital felony murder, in the complete absence of an arson instruction. Quite honestly, I am distressed by the trend I see emerging in this court to uphold criminal convictions, despite serious trial defects, as long as it appears that there is ample evidence pointing to a defendant’s guilt. Justice is not being served, and dangerous precedents are being established with cases such as the present one.
I must first address the majority’s erroneous conclusion that no error occurred when the trial court convicted Appellant of capital murder after the jury returned guilty verdicts on both capital murder and second-degree murder. In support of its conclusion, the majority avers that the trial court cured any possible irregularity when it polled the jury on the verdict of capital murder. This conclusion ignores two critical facts. First, there is absolutely no way of knowing whether the jury would have unanimously agreed that they had found Appellant guilty of second-degree murder if the court had also polled them on this verdict. Second, and more importantly, the note sent to the trial court during deliberations indicated that the jurors believed each of the murder charges to be varying types of “capital” murder. Thus, when the trial court polled the jury simply on “capital” murder, who knows if they even understood that each of the charges were not “capital” murder. It cannot be assumed, as the majority does, that the jury intended to impose the harshest conviction. In so doing, the majority ignores the fact that the jury found Appellant not guilty of the offense of first-degree murder. Unlike the majority, I do not believe that the trial court’s action sufficiently clarified the inconsistent verdicts.
Furthermore, the majority’s reliance on Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993), is nothing more than a thinly veiled attempt to justify the erroneous result it reaches in this case. Hill is wholly inapplicable, as demonstrated by the lack of discussion of the case in the majority opinion. There, the defendant was charged with manufacturing or possessing with intent to manufacture or deliver a controlled substance and using or possessing with intent to use drug paraphernalia. Fie was convicted and sentenced for both offenses. On appeal, this court reversed both convictions on the basis of an error in the admission of evidence. This court, in dicta, went on to examine other issues, including the defendant’s contention that he could not be prosecuted and convicted of both charges because they constituted a continuing course of conduct. This court disagreed and discussed the fact that a defendant may be prosecuted for both a greater and a lesser-included offense and if found guilty of both could be sentenced for the greater offense. It is clear that the majority chooses to rely on this case in an attempt to confuse the real issue, namely that the jury did not understand the instructions given to them and, thus, returned inconsistent verdicts.
Equally misplaced is the majority’s reliance on Johnson v. State, 695 P.2d 638 (Wyo. 1985). Again, this is a case that involved a defendant who was convicted of a greater offense after the jury returned guilty verdicts on both the greater and the lesser-included offenses. It has absolutely nothing to do with inconsistent verdicts. Because there is no Arkansas case precisely on point, it is understandable that the majority looks for guidance from other jurisdictions, but the guidance sought should be from cases where the issue is one of inconsistent verdicts. Such a case is People v. Porter, 659 N.E.2d915 (Ill. 1995). There, ajury returned verdicts of guilty but mentally ill on two counts of first-degree murder, as well as verdicts of guilty but mentally ill on two counts of second-degree murder for a single offense. The trial court rejected the jury’s findings on one of the counts of first-degree murder and both of the counts of second-degree murder and entered judgment on the remaining count of first-degree murder.
The defendant appealed to the Illinois Supreme Court, arguing that the jury verdicts were inconsistent and that it was improper for the trial court to disregard three of the convictions. The court agreed and ordered that the defendant was entitled to a new trial, stating that a single murder cannot be both provoked and unprovoked. In so ruling, the court noted that under Illinois law, second-degree murder is first-degree murder plus mitigation. In other words, first-degree murder is committed without any provocation, while second-degree murder results when the defendant is provoked in some manner. Otherwise, all the elements of first and second-degree murder are identical.
After determining that the verdicts were inconsistent, the Illinois Supreme Court then determined that the trial court erred in simply rejecting three of the verdicts. According to the court, the trial court should have provided additional jury instructions that would resolve the inconsistency and then sent the jury back for further deliberations. In explaining this rule, the court stated:
Under such circumstances, it is improper for a trial court to enter judgment on one or more of the verdicts and vacate the other verdicts. The rationale behind this rule is that a trial court may not usurp a jury’s function to determine innocence or guilt by second-guessing which guilty verdict was intended by the jury and which was the result of some misconception.
Id. at 921 (citing People v. Alamo, 483 N.E.2d 203 (Ill. 1985)).
Just as in Porter, the trial court in the instant case second-guessed which verdict was intended, thereby usurping the jury’s function of determining guilt. Yes, the trial court’s poll of the jury resulted in an unanimous agreement that the jury intended a guilty verdict on the charge of capital murder. Again, I must reiterate, we have no way of knowing whether the jury would have also unanimously agreed that they had found Appellant guilty of second-degree murder. With regard to the verdict of capital murder, the jury determined that Appellant murdered Lori Patti-son with premeditated and deliberated purpose or, alternatively, that she killed her in the course of committing the felony of arson. The jury also determined that Appellant committed second-degree-murder by knowingly causing the death of Ms. Pattison under circumstances manifesting an extreme indifference to the value of human life. Despite these two findings, the jury found that Appellant did not purposely cause Ms. Pattison’s death when it acquitted her on the charge of first-degree murder. When the jury returned these inconsistent verdicts, the trial court should have provided further instructions and ordered the jury to continue deliberations. There is certainly precedent for such action, as a similar situation was addressed by the trial court in Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980). There, this court affirmed the trial court’s denial of a mistrial after the court clarified any ambiguity in the jury’s verdicts by ordering them to continue deliberations until the verdicts were consistent. Because no such action was taken in this case, it is impossible to ascertain the jury’s true intent.
Before leaving this point, I must note one final irregularity in the majority’s logic. As another basis supporting its conclusion, the majority notes that the jury subsequently sentenced Appellant to life imprisonment without parole, a term consistent with capital murder, not second-degree murder. This fact has no bearing whatsoever on the jury’s intent. The death penalty was never sought in this case. Moreover, the record reflects that once the trial court determined that Appellant had been convicted of capital murder, it instructed the jury’s foreperson to sign a form sentencing Appellant to life imprisonment, the only permissible sentence remaining for capital murder. In other words, the jury did not deliberate Appellant’s sentence for the murder conviction.
Turning now to the issue of the missing arson instruction, I must point out that this court has usurped the jury’s function of determining whether or not Appellant committed the felony of arson, as well as capital felony murder. It is clear from the record that the trial court never instructed the jury on the offense of arson, either as the underlying felony for capital murder or standing alone. In short, there is no instruction to the jury providing them with the elements that the State was required to prove in order to find Appellant guilty of arson. As the majority points out, the trial court stated that it added both an arson instruction, as well as an instruction for tampering with evidence. However, the record reflects that the jury instructions were read twice and, both times, the tampering instruction was given but the arson instruction was not read. It is highly improbable, as the majority implies, that the reading of the arson instruction was the only thing left out of the record, not once, but twice. A better conclusion is that it was not given.
In determining that there was sufficient evidence supporting the jury’s determination that Appellant committed arson and capital felony murder, the majority is engaging in rank speculation. Without knowing the elements of the crimes, there is simply no way that the jury could have properly determined that Appellant committed those offenses. It is axiomatic that it is not for this court to weigh the evidence or assess the credibility of the witnesses, as that determination lies within the province of the trier of fact. See, e.g., Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004); Strom v. State, 348 Ark. 610, 74 S.W.3d 233 (2002); Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Yet, that is precisely what the majority is doing in this case. If it is acceptable for a jury to determine guilt without knowing the elements of the crime, then this court should do away with the Arkansas Criminal Jury Instructions.
I anticipate that the majority would conclude that this issue is not preserved for our review, as it was not raised in the trial court or on appeal. Indeed, in St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990), this court refused to consider for the first time on appeal an allegation that the trial court erred by refusing to give a particular instruction. St. Clair, however, is distinguishable from the instant case. The instruction at issue in that case involved the weight to be given to a hearsay statement. Moreover, this court refused to consider the argument because the trial court was not given the opportunity to correct the error. Here, the missing instruction sets forth the elements that the State is required to prove in order to obtain a conviction. In addition, the trial court stated on the record that he added the arson instruction, but for whatever reason, it was never read to the jury. Thus, the trial court had an opportunity to correct the error.
In Sullivan v. Louisiana, 508 U.S. 275 (1993), the United States Supreme Court reversed a defendant’s conviction for first-degree murder because the reasonable-doubt instruction given to the jury was constitutionally deficient. In so ruling, the Court pointed out that the right to trial by jury in criminal cases is a fundamental right. The Court further noted that the most important element of this right is to have the jury, rather than the judge, reach the requisite finding of guilt. Id. In further elaborating on this principle, the Court stated:
What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, and must persuade the factfinder “beyond a reasonable doubt” of the facts necessary to establish each of those elements. This beyond-a-reasonable-doubt requirement, which was adhered to by virtually all common-law jurisdictions, applies in state as well as federal proceedings.
Id. at 277-78 (citations omitted).
Appellant in this case has been denied her right to a trial by jury as guaranteed her by the Sixth Amendment. It cannot be said that the State proved beyond a reasonable doubt all of the elements of arson and capital felony murder because the jury was never instructed on those elements and the State’s burden in proving them. Instead, the majority has improperly assumed the role of factfinder and determined that there was sufficient evidence to support Appellant’s convictions. In so doing, the majority has violated both constitutional principles, as well as the dictates governing our role as an appellate court.
For the above-stated reasons, I respectfully dissent.
Thornton and Hannah, JJ., join in this dissent.