Ark. Code Ann. § 5-4-603 (2026)

Research References

Ark. L. Rev.

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

Janet C. Hoeffel, Death Beyond a Reasonable Doubt, 70 Ark. L. Rev. 267 (2017).

U. Ark. Little Rock L.J.

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

Survey of Arkansas Law: Criminal Procedure, 6 U. Ark. Little Rock L.J. 119.

Survey — Criminal Procedure, 10 U. Ark. Little Rock L.J. 567.

Case Notes

Constitutionality.

Former death penalty statute held constitutional. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978) (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; since, under this section the trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it. 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).

This section, which sets out the findings required for a death sentence, is not unconstitutional. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226, 116 S. Ct. 1861, 134 L. Ed. 2d 960 (1996).

The claim that the Arkansas statutory scheme regarding capital murder is unconstitutional in that it does not require the jury to separately weigh each defendant's role in a crime involving capital murder, so as to determine individual culpability, was rejected where the evidence showed that the blame for victim's murder rested with near equality on all of the defendants. 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).

Since this sentencing statute does not require a mandatory death sentence, but rather establishes criteria which must be strictly met before a death sentence shall be imposed, it is not unconstitutional. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, Hill v. Arkansas, 479 U.S. 1101, 107 S. Ct. 1331 (1987).

This section does not violate the Eighth Amendment, and this section as applied did not violate defendant's right to due process. Singleton v. Lockhart, 962 F.2d 1315 (8th Cir. 1992), cert. denied, Singleton v. Norris, 506 U.S. 964, 113 S. Ct. 435 (1992).

The argument that the provisions in this section are unconstitutional because they prohibit the jury from exercising mercy, and therefore amount to a mandatory death penalty, held without merit. Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997).

The “shall impose” language of this section is constitutional; the jury has the option of mercy and shall return a sentence of death only if certain conditions are met. Cox v. Norris, 133 F.3d 565 (8th Cir. 1997), cert. denied, 525 U.S. 834, 119 S. Ct. 89 (1998).

This section, in conjunction with § 5-4-604, constitutionally narrows the class of persons eligible for the death penalty. Cox v. Norris, 133 F.3d 565 (8th Cir. 1997), cert. denied, 525 U.S. 834, 119 S. Ct. 89 (1998).

This section is constitutional. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

This section does not unconstitutionally provide for the mandatory imposition of the death sentence; a jury may show mercy simply by finding that the aggravating circumstances do not justify the imposition of a death sentence. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).

Subsection (a) is constitutional, notwithstanding the contention that it mandates the imposition of the death penalty and does not allow the jury to show mercy. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999).

The statute does not require a mandatory death penalty and, therefore, is not unconstitutional. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

This section is not facially unconstitutional on grounds that it does not permit the jury to give adequate effect to mitigating evidence. Williams v. Norris, 576 F.3d 850 (8th Cir. 2009).

In General.

This section provides for the narrowing of the death eligible class in the penalty phase of the trial. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (Ark. 1992).

This section is properly applied where the jury is instructed that it can, by finding that circumstances will not warrant the imposition of the death penalty, return a verdict of life without parole. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989).

Application of this section does not result in a mandatory death sentence. Williams v. State, 346 Ark. 54, 56 S.W.3d 360 (2001).

Applicability.

The court may conduct a harmless-error analysis if the jury found no mitigating circumstances, or when the jury makes an error in finding that an aggravating circumstance exists. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997), cert. denied, Jones v. Arkansas, 522 U.S. 1002, 118 S. Ct. 574 (1997).

Aggravating or Mitigating Circumstances.

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).

Weighing the aggravating circumstances against the mitigating ones for sentencing purposes is not simply a matter of counting the number of aggravating and mitigating circumstances and striking a balance but is a reasoned judgment to be exercised in light of the totality of the circumstances. 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).

Where the jury found that aggravating circumstances existed and that no mitigating circumstances existed, the facts supported the sentence of death. Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977), cert. denied, Woodard v. Arkansas, 439 U.S. 1122, 99 S. Ct. 1034 (1979) (decision under prior law).

Jury must find not only that the aggravating circumstances outweigh the mitigating circumstances, but also that the aggravating circumstances justify a sentence of death beyond a reasonable doubt as required by subdivision (a)(3) of this section. Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), cert. denied, Williams v. Arkansas, 459 U.S. 1042, 103 S. Ct. 460 (1982).

This section requires only that the jury unanimously find at least one of the aggravating circumstances set out in § 5-4-604 to exist before it can impose the death penalty; accordingly, where the jury found one aggravating circumstance, it could properly impose the death penalty. 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).

Jury's finding that the aggravating circumstances outweighed beyond a reasonable doubt any mitgating circumstances was supported by the evidence. 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); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226, 116 S. Ct. 1861, 134 L. Ed. 2d 960 (1996).

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 the 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).

It is a matter of judgment whether the facts support the jury's findings as to the issues of aggravating and mitigating circumstances, but an appellate court will not substitute its judgment for that of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory requirements. O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).

Although petitioner claimed that his attorney was ineffective in not objecting to the prosecutor's statement in his closing argument during the penalty phase that if the jury finds aggravating circumstances which outweigh the mitigating circumstances, they should sentence him to death, it was held that, while this section actually provides that to sentence a defendant to death the jury must also find that the aggravating circumstances must justify a sentence of death, the petitioner failed to prove that he was prejudiced by the omission; it was unlikely that the addition of the omitted phrase would have resulted in a different sentence. O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

Even if the jury finds that the aggravating circumstances outweigh the mitigating circumstances under this section the jury may nevertheless reject the penalty of death if it finds the aggravating circumstances do not justify a penalty of death beyond a reasonable doubt. Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D. Ark. 1992), aff'd, 8 F.3d 614 (8th Cir. Ark. 1993).

While the aggravating circumstance in § 5-4-604(3) does not place any time restriction on which violent crimes may be considered, the jury must still find, pursuant to subdivision (a)(3) of this section, that the aggravating circumstances justify a sentence of death beyond a reasonable doubt; thus, in the event the jury finds that the defendant committed a violent crime many years ago, it may take into account that the previous crime was nothing more than one moment's indiscretion as a youth and reject the penalty of death on that basis. Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D. Ark. 1992), aff'd, 8 F.3d 614 (8th Cir. Ark. 1993).

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).

Aggravating circumstance existed beyond a reasonable doubt, where defendant had previously threatened a law enforcement officer with a butcher knife, which was the offense for which defendant was currently on parole. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), cert. denied, Williams v. Arkansas, 516 U.S. 1030, 116 S. Ct. 676, 133 L. Ed. 2d 525 (1995), rehearing denied, — Ark. —, — S.W.3d —, 2012 Ark. LEXIS 45 (Ark. Jan. 26, 2012).

In death penalty case, proof of a prior felony involving violence was sufficient as a aggravating circumstance. 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).

Where the jury unanimously found two mitigating circumstances on each count: (1) Appellant grew up in an environment of abuse and alcoholism; and (2) appellant grew up in an environment where his father provided an example of extreme violent reactions to situations, the Supreme Court must reverse for resentencing the death sentences on the counts relating to three shooting victims. 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).

Where sentencing jury clearly found that one aggravating factor existed, that the aggravating factor outweighed any mitigating factors, and that the death penalty was justified, the court applied the analysis under subsection (d) and determined that the inconsistent findings regarding a mitigating factor were harmless error and affirmed the death penalty sentence. Robbins v. State, 356 Ark. 225, 149 S.W.3d 871 (2004).

Death sentence imposed on defendant convicted of capital murder was reversed because confusion led the jury to disregard any consideration of mitigating circumstances; no polling of the jury regarding any mitigating circumstance took place and the jury manifestly erred by marking the box that there was no evidence presented of any mitigators, despite the fact that an abundance of such evidence was, in fact, presented. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004).

Defendant's due process rights were not violated by trial court's refusal to authorize funds to hire a psychiatrist to testify at the sentencing part of defendant's capital murder trial as the assistance of a doctor who participated in the competency evaluation in the defense met the requirements of Ake v. Oklahoma. Davis v. Norris, 423 F.3d 868 (8th Cir. 2005).

Because a jury clearly erred in finding the aggravating circumstance of an underlying robbery when defendant was trying to recover from the murder victim money that he had lost gambling in a card game with the victim, harmless error analysis was not required. Daniels v. State, 373 Ark. 536, 285 S.W.3d 205 (2008), superseded by statute as stated in, Heard v. State, 2009 Ark. 546, 354 S.W.3d 49 (2009).

Petitioner's death sentence could not stand because the manner in which the jury completed its form allowed only the conclusion that it eliminated from its consideration all evidence presented of mitigating circumstances and sentenced petitioner to death solely based on an aggravating circumstance, which was reversible error. Williams v. State, 2011 Ark. 534 (2011), overruled, Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233 (2014).

Burden of Proof.

This section clearly requires findings of aggravators beyond a reasonable doubt. 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).

Construction With Other Law.

Section 5-4-602(4) 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).

Death Penalty.

The state may, if it chooses, resentence defendant whose death sentence was set aside because jury considered an invalid aggravating circumstance, relying on the remaining aggravating circumstance and any others which it might be able to prove. Perry v. Lockhart, 656 F. Supp. 46 (E.D. Ark. 1986), aff'd in part, reversed in part, 871 F.2d 1384 (8th Cir. Ark. 1989).

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).

Denial of defendant's motion to prohibit the state from seeking the death penalty on retrial of the charge of capital murder was appropriate because there was no acquittal of the death penalty when the circuit court imposed the life sentence as required by law after the jury deadlocked on the penalty issue and then the circuit court imposed the sentence of life without parole as a matter of law, under subsection (c) of this section. Osburn v. State, 2011 Ark. 406 (2011), cert. denied, 568 U.S. 827, 133 S. Ct. 102, 184 L. Ed. 2d 47 (2012).

Discretion of Court and Jury.

This section provides that the jury shall impose a sentence of death if it returns certain written findings, but the trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Juries are not bound to return a verdict of death if they find aggravating circumstances outweigh mitigating circumstances; whatever the jury may find with respect to aggravation versus mitigation, it is still free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death. Additionally, because the capital murder statute and the first degree murder statute overlap in appropriate cases, the jury may refuse consideration of both the death penalty and life without parole, by returning a guilty verdict as to the charge of murder in the first degree. 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).

Jury, irrespective of its findings under these provisions, can still return a life verdict without parole simply by rejecting the death penalty. 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).

This section does not contain a binding instruction, i.e., does not require a mandatory death sentence, but rather provides specified criteria that must be fully satisfied before the death sentence can be imposed; this section provides that a jury is free to sentence to life without parole if it finds the aggravating circumstances do not “justify” death. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Jury cannot ignore a stipulated mitigating factor. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004).

Evidence.

Evidence sufficient to find that death penalty was not wantonly, arbitrarily or freakishly imposed, and was not excessive in relation to the crime and the jury's verdict was relatively free of passion or prejudice. 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).

Evidence supported the jury's finding that defendant had previously committed another felony, an element of which was the use of threat of violence to another person. 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).

Evidence sufficient to support jury's finding that no mitigating factors existed. O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).

Where the prosecutor only admitted the conviction judgment of a previously committed felony into evidence to establish an aggravating circumstance at the sentencing phase of defendant's trial, and that previous judgment was later reversed, the use of the previous conviction was prejudicial and the defendant was entitled to be resentenced. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

Where, in a prosecution for capital murder, the jury found two aggravating circumstances and did not find any mitigating factors, imposition of the death penalty was upheld. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).

Jurors.

This section contemplates that persons on the jury will be capable of imposing the death penalty; accordingly, it was not error for the trial court to strike for cause persons who stated that they could not under any circumstances impose the death penalty. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, Henderson v. Arkansas, 464 U.S. 1012, 104 S. Ct. 536 (1983).

State's questioning of venire persons regarding the imposition of death for the murder of a single person did not lead to a jury organized to return a verdict of death; the State was simply exploring whether the jurors could follow the court's instructions with respect to capital murder. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004).

Jury Instructions.

Judge's instruction during the sentencing phase in a capital murder case that the jury could not, consistent with the law and the evidence, find that no evidence of mitigating circumstances had been presented, did not violate a habeas petitioner's rights under the Sixth and Eighth Amendments because the judge promoted, rather than obstructed, the jury's consideration of mitigating evidence. Jackson v. Norris, 468 F. Supp. 2d 1030 (E.D. Ark. 2007), vacated, 2007 U.S. App. LEXIS 27006 (8th Cir. Ark. 2007).

Where habeas petitioner argued that his trial counsel was ineffective for failing to object to the trial court's handling of the jury's error concerning the existence of mitigating circumstances, even assuming that the petitioner could show deficient performance in the failure to object, the failure to object had no effect on the jury's imposition of the death penalty because the trial court made no error in instructing the jury during the penalty phase. Jackson v. Norris, 468 F. Supp. 2d 1030 (E.D. Ark. 2007), vacated, 2007 U.S. App. LEXIS 27006 (8th Cir. Ark. 2007).

Justify.

Justification is an essential element for the imposition of a death sentence. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

Supreme Court Review.

The state Supreme Court may determine that subsection (d) of this section cannot be applied to the petitioner and/or that the court is without authority to reweigh the circumstances or apply harmless-error review. 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).

If the Supreme Court is unable to conclude that the erroneous finding of an aggravating circumstance would not have changed the jury's decision to impose the death penalty, the sentence must be set aside. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

Where the jury foreman asked the trial judge whether the jury could consider another capital murder conviction as an aggravating circumstance, it was impossible to surmise the amount of emphasis the jury gave this aggravating circumstance, and the Supreme Court was unable to conclude that the jury would have still imposed the death penalty; consequently case was remanded for resentencing. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

A defendant's death sentence may be affirmed using harmless error only if the error would not have changed the jury's decision to impose the death penalty. Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992), cert. denied, Ward v. Arkansas, 506 U.S. 841, 113 S. Ct. 124 (1992).

Because the result of the sentencing proceeding was rendered neither unreliable nor fundamentally unfair as a result of counsel's failure to make an objection to an improper aggravating factor, the failure to object did not constitute reversible “prejudice.” Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838 (1993).

The applicable statutory provisions as well as prior decisions of the Arkansas Supreme Court are crystal clear that the application of the reasonable doubt standard is required in appellate review of aggravating circumstances findings. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

The standards employed by the Arkansas Supreme Court to determine the sufficiency of the evidence to support the jury's findings, relative to the aggravating circumstances were not adequate; it is readily apparent that the standard employed by the Arkansas Supreme Court in reviewing the findings of the jury was a lesser standard than a “reasonable doubt” analysis. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

The Arkansas Supreme Court can perform the statutory harmless error analysis in the penalty phase only if the jury found no mitigating circumstances. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

Where there was no erroneous finding of any aggravating circumstance with respect to the death penalty, the Supreme Court would not conduct a harmless-error review under subsection (d). Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996), cert. denied, Nance v. Arkansas, 519 U.S. 847, 117 S. Ct. 134, 136 L. Ed. 2d 83 (1996).

When the jury has made an error regarding mitigating circumstances, but no error regarding aggravating circumstances, such error would clearly be harmless if the jury unanimously found that several aggravating circumstances existed, that they outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist, and that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Hill v. State, 331 Ark. 312, 962 S.W.2d 762, cert. denied, 525 U.S. 860, 119 S. Ct. 145, 142 L. Ed. 2d 118 (1998).

Unanimous Return Required.

Where defendant had been convicted of capital murder, the failure of the jury to unanimously return a written finding that aggravating circumstances justified a sentence of death beyond a reasonable doubt required reversal of the sentencing phase. Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). See also Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997), cert. denied, Jones v. Arkansas, 522 U.S. 1002, 118 S. Ct. 574 (1997).

This section requires that the jury vote unanimously and perform a weighing test of the mitigating factors against the aggravating factors before it can impose the death penalty. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (Ark. 2003).

Death penalty upheld where the trial court did not direct the jury to impose the death penalty, but properly instructed the jury to correct an error made in completing the verdict form, and the jury unanimously agreed that there were no mitigating circumstances. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (Ark. 2003).

Verdict Forms.

This section requires the jury to complete three verdict forms: the first deals with aggravating circumstances, where the jury checks off any of the statutory aggravating circumstances found to exist beyond a reasonable doubt; the second form similarly deals with mitigating circumstances, where the jury identifies those which are unanimously found to exist, those which fewer than all of the jurors believe exist, and those for which there is evidence but which the jurors unanimously agree do not exist; and the third verdict form deals with whether any existing aggravating circumstances outweigh any existing mitigating circumstances and whether the aggravating circumstances justify a death sentence. Snell v. Lockhart, 14 F.3d 1289 (8th Cir. Ark. 1994).

Defendant's death sentence was reversed and remanded for resentencing because verdict Form 2 was not signed or filed and, therefore, the court was unable to say that the jury considered any possible mitigating circumstances, much less that it concluded that beyond a reasonable doubt that the only aggravating circumstance outweighed any mitigating circumstances. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), cert. denied, Anderson v. Arkansas, 540 U.S. 1050, 124 S. Ct. 832 (2003), appeal dismissed, — Ark. —, — S.W.3d —, 2006 Ark. LEXIS 109 (Jan. 12, 2006), dismissed, Anderson v. Norris, — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 10114 (E.D. Ark. Feb. 8, 2008).

Submission of a single set of verdict forms deprived the jury of the opportunity to separately consider the circumstances surrounding each of the murders in determining the punishment to be assessed for each count. Submission of a single set of forms was an error that impacted the validity of the death sentence imposed by the jury. Wertz v. State, 2016 Ark. 249, 493 S.W.3d 772 (2016).

Although the jury completed the verdict forms it was given, the erroneous submission of a single set of forms deprived the jury of the opportunity to determine which aggravators applied to which of the murders. The presence of a defect in the appellate process and the fact that appellant received a sentence of death weighed heavily in favor of the Supreme Court granting a motion to recall the mandate and ordering resentencing. Wertz v. State, 2016 Ark. 249, 493 S.W.3d 772 (2016).

Victim Impact Evidence.

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).

Harmless error analysis under this section did not apply in reviewing the propriety of victim impact statements in which the victim's survivors testified that they wished the jury to impose the death sentence, because the alleged error in admitting the statements did not challenge the jury's finding of aggravating circumstances. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 95 (Feb. 12, 2010).

Circuit court properly denied defendant's claim for postconviction relief because the victim-impact testimony requesting life without parole for his murder conviction was not prejudicial as defendant received a 40-year sentence. Liggins v. State, 2016 Ark. 432, 505 S.W.3d 191 (2016).

Cited: Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980); Simmons v. Lockhart, 626 F. Supp. 872 (E.D. Ark. 1985); Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988); Perry v. Lockhart, 871 F.2d 1384 (8th Cir. Ark. 1989); Singleton v. Lockhart, 871 F.2d 1395 (8th Cir. Ark. 1989); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991); Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Whitmore v. Lockhart, 8 F.3d 614 (8th Cir. Ark. 1993); Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993); Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994); Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995); Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995); Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Lee v. State, 327 Ark. 692, 942 S.W.2d 231; Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999); Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004); Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006); Thomas v. State, 370 Ark. 70, 257 S.W.3d 92; Grubbs v. State, 2020 Ark. 42 (2020).