Ark. Code Ann. § 5-4-602

Research References

ALR.

Validity, Construction, and Application of Pattern and Nonpattern Jury Instructions in State Death Penalty Proceedings. 83 A.L.R.6th 255.

Ark. L. Rev.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Constitutional Law, 1 U. Ark. Little Rock L.J. 140.

Survey of Arkansas Law, Criminal Procedure, 5 U. Ark. Little Rock L.J. 123.

Case Notes

Constitutionality.

Where defendant was sentenced to life imprisonment without parole, he could not attack as unconstitutionally vague provisions of former similar statute which would have permitted the jury to impose the death penalty after assessing aggravating circumstances, since defendant had not been penalized by that provision. Williams v. State, 260 Ark. 457, 541 S.W.2d 300 (1976) (decision under prior law).

Sections 5-4-602 — 5-4-605 do not place an impermissible burden on the exercise of the constitutional right to trial by jury. Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied, Ruiz v. Arkansas, 459 U.S. 882, 103 S. Ct. 181 (1982).

Allegation that the Arkansas death penalty statute impermissibly penalized petitioner's exercise of his constitutional right to plead not guilty and to have a jury trial was rejected. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

There is no right to plead guilty, and the fact that only a jury may impose the death penalty does not invalidate this section and §§ 5-4-603 — 5-4-605. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726 (1984).

This section and § 5-10-101 et seq. are not unconstitutionally ambiguous, overbroad or vague, either facially or as applied. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Subdivision (4) of this section is not violative of due process; the impact of the murder on the victim's family is relevant to the jury's decision as to whether to recommend that the death sentenced be imposed. Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 522 U.S. 1002, 118 S. Ct. 572 (1997).

Appeal.

In a capital felony case, it is the duty of the Supreme Court to examine the entire record, not only for those errors raised on appeal, but also for those that may be found in the record. Bly v. State, 263 Ark. 138, 562 S.W.2d 605 (1978).

Defendant who did not receive the death penalty lacked standing to point to errors having to do with the jury's consideration of the death penalty. Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); King v. State, 312 Ark. 89, 847 S.W.2d 37 (1993).

Disguised evidentiary argument that testimony should have been admitted under subdivision (4), which states that the rules of evidence, such as hearsay, do not apply to mitigating evidence in capital cases, was not entertained in Rule 37 petition. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

Where defendant moved for summary reversal of his conviction for capital murder based upon the omission of the original photo array from the record, but defendant had failed to object to the eyewitnesses' in-court identifications at trial, and because defendant's only point on appeal would have been procedurally barred, the appellate court held that the record on appeal was sufficient without the original photo array. Lewis v. State, 354 Ark. 359, 123 S.W.3d 891 (2003).

Cruel and Unusual Punishment.

Sentence of life imprisonment without parole was not cruel or unusual punishment, where the sentence was within the limits established by the legislature. Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976) (decision under prior law).

Where jury found defendant guilty of capital murder, the sentence it imposed of life imprisonment without parole was within the statutory limits of this section and thus not cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981).

Death Penalty.

A procedure for prosecuting those charged with capital felony murder in which the jury must make a unanimous determination of guilt of one of the narrowly defined categories of the crime beyond a reasonable doubt, and in which the same jury in the sentencing phase of the trial must hear testimony tending to show one or more specifically enumerated groups of aggravating circumstances plus evidence relevant to mitigating circumstances, provided adequate safeguards against arbitrary or capricious imposition of the death penalty. Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878, 98 S. Ct. 231 (1977) (decision under prior law).

Argument that the death penalty was unconstitutional was rejected. Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983), cert. denied, Hayes v. Arkansas, 464 U.S. 865, 104 S. Ct. 198, 78 L. Ed. 2d 173 (1984).

Death sentence was not invalid because the trial court instructed the jury on pecuniary gain as an aggravating circumstance, and this aggravating circumstance did not violate U.S. Const. Amend. 8 by improperly duplicating an element of the robbery/murder offense with which he was convicted. Duplicative nature of Arkansas's statutory aggravating circumstance of pecuniary gain where the defendant is convicted of robbery/murder does not render the defendant's sentencing infirm, since the constitutionally-mandated-narrowing function was performed at the guilt phase. O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).

Imposition of death penalty upheld. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, Sanders v. Arkansas, 513 U.S. 1162, 115 S. Ct. 1126 (1995).

Both the capital murder conviction and the death penalty sentence held invalid and set aside. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

Circuit court did not abuse its discretion in allowing the State's penalty-phase rebuttal closing argument because the State's comments were not specifically designed to appeal to the jurors' passions; the State briefly summarized the reasons why it chose to pursue the death penalty, namely, that defendant had shot the victim with a crossbow and that he lacked remorse. Smith v. State, 2018 Ark. 277, 555 S.W.3d 881 (2018).

Defendant's Rights.

Although many capital defendants express a desire to give up if they are convicted, and an attorney should try to persuade the client to act in his best interests, this duty does not remove the ultimate decision of whether to present mitigating evidence from the client. Snell v. Lockhart, 14 F.3d 1289 (8th Cir. Ark. 1994).

Effect of Amendments.

It appears that before 1993 Arkansas would not permit victim impact evidence or evidence of future dangerousness or evidence of any other aggravating circumstances not listed in § 5-4-604; however, the Arkansas Supreme Court has, albeit sub silentio, previously approved arguments concerning future dangerousness. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

In 1993, subdivision (4) of this section was amended to allow the state to present additional evidence in aggravation beyond the enumerated statutory factors by providing for the introduction of “any other matter relevant to punishment”, including, but not limited to, victim-impact evidence. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Evidence.

During the penalty stage of a capital murder trial, the state was not required to repeat evidence of aggravating circumstances in addition to any such evidence previously presented during the guilt or innocence phase of the trial. Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (1975), vacated, Collins v. Arkansas, 429 U.S. 808, 97 S. Ct. 44, 97 S. Ct. 45 (1976), aff'd, 261 Ark. 336, 548 S.W.2d 135 (1977), vacated insofar as judgment left undisturbed the death penalty imposed, Collins v. Arkansas, 429 U.S. 808, 97 S. Ct. 44, 97 S. Ct. 45 (1976) (decision under prior law).

Even though this section tends to relax the requirement of admissibility with regard to authenticity or hearsay, the legislature did not intend to totally open the door to any and all matters simply because mitigation is the issue, so that testimony should be sworn and the state given an opportunity to cross-examine unless there are compelling and valid reasons for not doing so. Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981).

The trial court did not err when, in the penalty phase of the capital murder trial, it refused to allow a defense witness to testify as to the defendant's charitable acts which the defendant had related to him, because the defendant was available to testify and there was no reason for the admission of such hearsay testimony. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

The trial court should exclude from the penalty phase of the trial the results of a polygraph examination given to the defendant; while the rules of evidence are not applicable to the penalty phase of the trial, the evidence offered must be probative of some issue to be properly considered in the penalty phase. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985).

If either the trial court or a reviewing court finds that, after removal of any infirm factors, the residual evidence offered by the state at the initial proceeding will not support a death verdict, then the state has failed in its proof and may not try again. Singleton v. Lockhart, 653 F. Supp. 1114 (E.D. Ark. 1986), aff'd in part, reversed in part, 871 F.2d 1395 (8th Cir. Ark. 1989).

Any relevant mitigating evidence concerning a defendant's character should not be excluded; such evidence may include defendant's behavior and conduct that existed not only before and at time of crime, but also that which occurred before sentencing and during the period of post-conviction relief, should a later resentencing occur. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied, 484 U.S. 917, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987).

Although subdivision (4) of this section provides that, in determining the sentence, evidence concerning mitigating circumstances may be presented regardless of the rules of evidence, but “evidence relevant to the aggravating circumstances … shall be governed by the rules governing the admission of evidence …,” Evid. Rule 609 does not prevent the use of prior convictions if more than 10 years have elapsed since the date of the prior conviction. Evid. Rule 609 only prevents the use of prior convictions more than 10 years old for impeachment purposes; it is based upon the concept that a crime committed more than 10 years ago is no longer probative of a witness's truthfulness at the time of trial. On the other hand, the aggravating circumstances statute, § 5-4-604, is not concerned with the defendant's character at the time of trial; instead, this section is concerned with disclosing whether the defendant's history establishes such a propensity for violence that it will reoccur. Therefore, Evid. Rule 609 does not prevent the introduction of felony convictions more than 10 years old to show a propensity to violence in the penalty phase. Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988).

Although subdivision (4) allows mitigating evidence to be presented regardless of its admissibility under the rules of evidence in criminal trials it does not open the way for irrelevant evidence. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), cert. denied, Pickens v. Arkansas, 497 U.S. 1011, 110 S. Ct. 3257 (1990).

Under subdivision (4), a psychologist can use a patient's history to give the patient's prognosis. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (Ark. 1992).

Evidence sufficient to find that petitioner made a knowing and intelligent waiver of his right to present evidence of mitigating circumstances during penalty phase. Snell v. Lockhart, 791 F. Supp. 1367 (E.D. Ark. 1992), cert. denied, Snell v. Arkansas, 490 U.S. 1075, 109 S. Ct. 2090 (1989), aff'd in part, reversed in part, 14 F.3d 1289 (8th Cir. Ark. 1994).

The prosecutor's argument, along with the submission of the underlying nonviolent felonies to the jury for consideration during sentencing constituted constitutional error, which had a substantial and injurious effect or influence in the jury's determination that defendant should receive the death penalty. Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993), modified, 28 F.3d 832 (8th Cir. 1994).

In the penalty phase of a capital murder case, the defendant is not bound by the rules of evidence in showing mitigating circumstances, but the state is bound by the rules of evidence in proving aggravating circumstances under subdivision (4) of this section. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

By expanding the scope of permissible evidence during the penalty phase, the General Assembly has not expanded the scope of punishment or added a new aggravating circumstance; permitting testimony under Act 1993, No. 1089 did not constitute an ex post facto law. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, Nooner v. Arkansas, 517 U.S. 1143, 116 S. Ct. 1436, 134 L. Ed. 2d 558 (1996).

Defendant's accomplice's testimony was corroborated and admissible, as other evidence independently established the accomplice's description of the double murder; the medical examiner's testimony, an officer's testimony, and testimony about defendant's van were all in accordance with the accomplice's testimony. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003).

It was not clear whether the testimony of a psychologist regarding the state death-row inmate's social history would have been admissible pursuant to subdivision (4)(B) of this section at the penalty phase of the inmate's capital murder trial without other witnesses providing a factual foundation for his opinions; although, at the time of the inmate's trial, expert testimony presenting social history as mitigating evidence at the penalty phase of Arkansas capital cases was not uncommon, other witnesses, usually the inmate, also testified and provided factual foundation for the expert's opinions. While the federal district court allowed this evidence at the inmate's evidentiary hearing under 28 U.S.C.S. § 2254(e)(2), the state trial court in a Ark. R. Crim. P. 37 evidentiary proceeding was in the best position to consider this issue. Williams v. Norris, 576 F.3d 850 (8th Cir. 2009).

Habeas Corpus Relief.

An evidentiary and procedural ruling based upon this section cannot be the basis of habeas corpus relief unless it can be shown that the ruling violates a specific constitutional provision or that it is so prejudicial as to violate due process. Pickens v. Lockhart, 802 F. Supp. 208 (E.D. Ark. 1992), aff'd, 4 F.3d 1446 (8th Cir. Ark. 1993).

Instructions.

Trial court did not err in allowing the state to prove all the defendant's prior felonies where the court clearly instructed the jury that they were to consider only the prior convictions involving threats or violence as aggravating circumstances and that the other convictions were to be considered only for enhancement purposes. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

Defendant's argument that, had the trial court instructed the jury on lesser-included offenses to terroristic threatening and aggravated assault, the jury might have found that he committed one or more misdemeanors, which would not have triggered the prior felony aggravating circumstances, held without merit; even if the jury had found the prior felony aggravating circumstance, it could only impose a sentence of death after considering (i) whether this aggravating circumstance justified a sentence of death, and (ii) whether this aggravating circumstance outweighed any mitigating circumstances found to exist. Parker v. Norris, 64 F.3d 1178 (8th Cir. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 820, 133 L. Ed. 2d 764 (1996).

Joint Sentencing.

A joint sentencing trial does not, per se, deprive any defendant of the right to individualized sentencing; where the evidence relating to the separate defendants is readily identifiable, and the jury is properly instructed, there is no problem. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Juries.

Insofar as the same jury is required to sit in both phases of a bifurcated trial, the idea that a juror who could qualify for only one phase of the trial can sit in both or that, on voir dire, the dual role of the jury should be distinguished, is foreclosed. Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied, 434 U.S. 894, 98 S. Ct. 272, 54 L. Ed. 2d 180 (1977) (decision under prior law).

It is not impermissible for the same “death qualified” jury to both hear the evidence and determine the sentence in a bifurcated trial for capital murder. Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981).

The law of Arkansas permits prospective jurors to be challenged if they would automatically vote for the death penalty upon conviction regardless of the evidence. Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), modified, 758 F.2d 226 (8th Cir. Ark. 1985).

The exclusion for cause of the veniremen with conscientious objections to the death penalty, without a determination that their objections would preclude their finding defendant guilty, did not deny him his right to an impartial jury and to a jury that was representative of the community. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

The death-qualification of the jury did not deprive defendant of an impartial jury. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983); Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983), cert. denied, Hayes v. Arkansas, 464 U.S. 865, 104 S. Ct. 198, 78 L. Ed. 2d 173 (1984); Hayes v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726 (1984).

A death-qualified jury is constitutional. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), cert. denied, Simmons v. Arkansas, 464 U.S. 865, 104 S. Ct. 197, 78 L. Ed. 2d 173 (1983); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983); Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, Rector v. Arkansas, 466 U.S. 988, 104 S. Ct. 2370, 80 L. Ed. 2d 842 (1984).

Exclusion for cause of two veniremen because of their uncertainty as to capital punishment, and failure to excuse for cause a venireman who showed a preference for it, did not constitute abuse of discretion. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, Clines v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984).

Jurors who are unalterably opposed to capital punishment should not be permitted to participate in the determination of guilt or innocence in capital cases and their exclusion is proper. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, Rector v. Arkansas, 466 U.S. 988, 104 S. Ct. 2370, 80 L. Ed. 2d 842 (1984).

The removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors who state that they cannot, under any circumstances, vote for the imposition of the death penalty does not violate a defendant's right under the Sixth and Fourteenth Amendments of the United States Constitution to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community or his constitutional right to an impartial jury. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758 (1986).

The removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors who state that they cannot, under any circumstances, vote for the imposition of the death penalty serves the state's entirely proper interest in obtaining a single jury that can impartially decide all of the issues in the defendant's case. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758 (1986).

Since Arkansas recognizes the death penalty, jurors in a capital murder case must be able to consider imposing a death sentence if they are to perform their function as jurors; the trial court correctly decided that those excused jurors could not perform their duties, because they would not consider imposing a death sentence. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

The proper standard to be used in releasing a juror is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

Life Sentence.

A sentence of “life in prison” or “straight life” is distinguishable from “life imprisonment without parole.” The former sentence may be imposed for conviction on a Class Y felony, such as rape, but the latter sentence may be imposed only for conviction of capital murder. Logan v. Lockhart, 994 F.2d 1324 (8th Cir. 1993), cert. denied, 510 U.S. 1057, 114 S. Ct. 722 (1994).

Mitigating Circumstances.

Although the rules of evidence are not applicable to the admissibility of mitigating evidence, the statute does not open the way for the admission of irrelevant evidence; to be admissible, evidence of mitigating circumstances must be relevant to the issue of the defendant's punishment. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999).

The disposition of charges against the codefendant had nothing to do with the defendant's character, record, background, history, condition, or the circumstances of his crime; therefore, it was not relevant as a mitigating circumstance. Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999).

It is not the case that any testimony a defendant believes would make the jury less likely to return a death verdict must be allowed to satisfy the dictates of federal due process; the broad range of facts admissible must focus on the persona of the defendant or on the fabric of the crime of which he has been convicted. Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001), rehearing denied, Greene v. Arkansas, 534 U.S. 858, 122 S. Ct. 135 (2001).

Evidence of a murder victim's wife's forgiveness and her opinion that life imprisonment was the appropriate penalty did not constitute relevant mitigating evidence. Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001), rehearing denied, Greene v. Arkansas, 534 U.S. 858, 122 S. Ct. 135 (2001).

Granting of petitioner's, an inmate's, petition to reinvest jurisdiction in the trial court to pursue a petition for writ of error coram nobis on the issue of the state's failure to disclose a sheriff's report concerning the inmate's childhood abuse was proper because the claim had apparent merit, which the circuit court should evaluate under subdivision (4)(B)(ii) of this section. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38 (2012), cert. denied, Howard v. Arkansas, 568 U.S. 981, 133 S. Ct. 528, 184 L. Ed. 2d 345 (2012).

Circuit court did not commit reversible error by excluding defendant's offer to plead guilty to capital murder in exchange for a life sentence, as evidence of a mitigating factor, i.e., acceptance of responsibility for his crime. The offer to plead with the stated condition was not relevant mitigating evidence, as evidence that defendant offered to plead guilty in exchange for a lesser sanction was not evidence that he was taking responsibility for his crime. Holly v. State, 2017 Ark. 201 (2017).

Prior Convictions.

The admission of defendant's prior convictions at the penalty phase was erroneous and had a substantial and injurious effect or influence on the jury's determination that defendant should receive the death penalty. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

To prove the defendant's prior commission of a violent felony that resulted in a conviction, the state may present any matters relating to the prior violent felony, including the circumstances surrounding the commission of the prior crime. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999).

Validity of Procedure.

A procedure for prosecuting those charged with capital felony murder in which the jury must make a unanimous determination of guilt of one of the narrowly defined categories of the crime beyond a reasonable doubt, and in which the same jury in the sentencing phase of the trial must hear testimony tending to show one or more specifically enumerated groups of aggravating circumstances plus evidence relevant to mitigating circumstances, provided adequate safeguards against arbitrary or capricious imposition of the death penalty. Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878, 98 S. Ct. 231 (1977) (decision under prior law).

Victim Impact Evidence.

State inmate, who was convicted of murder and sentenced to death, was not entitled to federal habeas relief based on the admission of victim impact testimony under this section; application of the victim impact evidence statute, which was passed after the crime was committed, did not violate the Ex Post Facto Clause because the statute was procedural in nature. Also, the Arkansas Supreme Court did not unreasonably apply federal law in finding no Sixth Amendment violation, as victim impact testimony was not an aggravating circumstance, and in finding no requirement that the jury be specifically instructed about how to consider the evidence. Johnson v. Norris, 537 F.3d 840 (8th Cir. 2008), rehearing denied, — F.3d —, 2008 U.S. App. LEXIS 28328 (8th Cir. Ark. Sept. 11, 2008), cert. denied, — U.S. —, 129 S. Ct. 1334, 173 L. Ed. 2d 605 (2009).

In a capital murder case, the state was properly allowed to present three witnesses who discussed the impact of the victims' deaths because this section did not declare what victim-impact evidence was relevant in any given case — that issue was decided by the circuit court, and victim-impact evidence was relevant to assist the jury in imposing punishment based on a measurement of the injury to society. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92, cert. denied, 552 U.S. 1025, 128 S. Ct. 620, 169 L. Ed. 2d 399 (2007).

—Constitutionality.

Victim impact statute is not void for vagueness and not violative of Ark. Const., Art. 2, § 9. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 334 (1996).

Constitutionality of victim impact testimony upheld. Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, Johnson v. Arkansas, 520 U.S. 1242, 117 S. Ct. 1848, 137 L. Ed. 2d 1051, 1997 U.S. LEXIS 3296 (1997).

The mere fact that the legislature has provided for the presentation of victim impact evidence does not mean that the victim impact evidence will be so unduly prejudicial as to render the trial fundamentally unfair and violate due process. Noel v. Norris, 194 F. Supp. 2d 893 (E.D. Ark. 2002).

Inmate who had been sentenced to death was incorrect in his argument that victim impact procedure was inadequate in not requiring the jury to find proof beyond a reasonable doubt as to victim statements; the court also specifically rejected the notion that victim-impact evidence is an aggravating circumstance or that it violates the statutory weighing process set out in §§ 5-4-603 through 5-4-605. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151, cert. denied, 543 U.S. 932, 125 S. Ct. 326, 160 L. Ed. 2d 235 (2004).

Arkansas's victim impact evidence statute, § 5-4-602(4), is procedural in nature and does not offend the Ex Post Facto Clause; the statute does not alter the potential penalty faced by any defendant, nor does it alter the state's burden of proof. Nooner v. Norris, 402 F.3d 801 (8th Cir. 2005), rehearing denied, — F.3d —, 2005 U.S. App. LEXIS 24870 (8th Cir. Nov. 18, 2005), cert. denied, 126 S. Ct. 2037, 164 L. Ed. 2d 794 (U.S. 2006).

Where habeas petitioner argued that his trial counsel was ineffective for failing to challenge the Arkansas victim impact statute as unconstitutional, counsel was not ineffective because subdivision (4) of this section was not unconstitutional, and the petitioner failed to show how the victim impact testimony in his case prejudiced him or violated his constitutional rights. Jackson v. Norris, 468 F. Supp. 2d 1030 (E.D. Ark. 2007), vacated, 2007 U.S. App. LEXIS 27006 (8th Cir. Ark. 2007).

—In General.

Subdivision (4) of this section clearly provides that evidence may be presented as to any matter relevant to punishment, including, but not limited to, victim-impact evidence; this section does not require that the evidence be limited to rebuttal. Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, Wooten v. Arkansas, 519 U.S. 1125, 117 S. Ct. 979 (1997).

The General Assembly clearly expressed the policy of this State that victim-impact evidence is relevant to the decision of what punishment is appropriate. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

The Victim Impact Statute, subdivision (4) of this section, which permits the presentation of victim impact evidence, does not improperly create a new aggravator outside the state statutory scheme of aggravators set forth in § 5-4-604. Noel v. Norris, 194 F. Supp. 2d 893 (E.D. Ark. 2002).

Subdivison (4) of this section is not in conflict with §§ 5-4-603 through 5-4-605 and the Arkansas Rules of Evidence because victim-impact evidence is relevant to punishment separately from aggravating and mitigating circumstances. Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006), cert. denied, 551 U.S. 1133, 127 S. Ct. 2973, 168 L. Ed. 2d 707 (2007).

—Relevance.

Victim-impact evidence is not an additional aggravating circumstance but rather is relevant evidence which informs the jury of the toll the murder has taken on the victim's family; such evidence has been sanctioned by the U.S. Supreme Court as relevant, although as a safeguard against excessive victim-impact evidence, the Due Process Clause provides a mechanism for relief when such evidence is so unduly prejudicial that it renders the trial fundamentally unfair. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

Penalty recommendations from family members of the victim are not relevant as victim-impact evidence. Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001), rehearing denied, Greene v. Arkansas, 534 U.S. 858, 122 S. Ct. 135 (2001).

Where the prisoner failed to show how the victim impact evidence admitted during the sentencing phase of his capital murder trial differed from that deemed admissible in prior U.S. Supreme Court cases or how it unduly prejudiced him, he was unable to establish that subdivision (4) of this section was void for vagueness; the prisoner's Eighth Amendment and due process challenges to the statute likewise failed. Nooner v. Norris, 402 F.3d 801 (8th Cir. 2005), rehearing denied, — F.3d —, 2005 U.S. App. LEXIS 24870 (8th Cir. Nov. 18, 2005), cert. denied, 126 S. Ct. 2037, 164 L. Ed. 2d 794 (U.S. 2006).

In defendant's trial for capital murder, the testimony of the victim's father, two sisters, and one of her children was not unduly prejudicial but rather was relevant to show the impact her death had on her family, which was precisely the purpose envisioned by the Arkansas General Assembly in enacting subdivision (4) of this section; thus, the trial court did not abuse its discretion in admitting victim-impact evidence during defendant's sentencing because such evidence was relevant under the Arkansas capital-murder-sentencing process. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006), cert. denied, 550 U.S. 939, 127 S. Ct. 2257, 167 L. Ed. 2d 1100 (2007).

Voir Dire.

Defendants in a capital murder case are not permitted to voir dire the jury between the guilt phase and the penalty phase of the trial since subdivision (3) requires the same jury sit at both phases. Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), cert. denied, Ruiz v. Arkansas, 454 U.S. 1093, 102 S. Ct. 659 (1981).

Waiver.

Defendant validly waived his right to present mitigating evidence where he had for months steadfastly refused to present mitigating evidence because he wanted to spare his family and friends from the trauma of such proceedings, the issue was discussed every time his attorneys met with defendant, and furthermore, because defendant had gone through a previous capital murder trial where he did present mitigating evidence, he certainly understood both the purpose of such evidence and the effect which it would have on those testifying; consequently, he made an informed and voluntary choice. Snell v. Lockhart, 14 F.3d 1289 (8th Cir. Ark. 1994).

Cited: Titus v. State, 268 Ark. 9, 593 S.W.2d 164 (1980); Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981); Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982); Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988); Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991); Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991); Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992); Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Cox v. Norris, 958 F. Supp. 411 (E.D. Ark. 1996); Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997); Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998); Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000); Copeland v. State, 343 Ark. 327, 37 S.W.3d 567 (2001); Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006); Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011).