Ark. Code Ann. § 5-4-604 (2026)

Research References

ALR.

Validity, Construction, and Application of Aggravating and Mitigating Provisions of Death Penalty Statutes — Supreme Court Cases. 21 A.L.R. Fed. 2d 1.

Construction and Application of United States Sentencing Guideline § 2A2.1(b)(1), 18 U.S.C.A., Providing Enhancement for Attempted Murder or Assault with Intent to Commit Murder Dependent Upon Nature or Degree of Injury. 30 A.L.R. Fed. 2d 385.

Ark. L. Rev.

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

U. Ark. Little Rock L.J.

Survey — Criminal Law, 12 U. Ark. Little Rock L.J. 183.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Constitutionality.

—In General.

The defendant's argument that the capital murder sentencing statutes are unconstitutionally vague in that the aggravating circumstances of this section are too closely related to the elements of capital felony murder was explicitly rejected because the aggravating circumstances are not an element of capital murder. 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).

Subdivision (8) (since amended) held to be too broad and vague to be sustained under the Eighth and Fourteenth Amendments to the United States Constitution. Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), amended, 295 Ark. 692A, 752 S.W.2d 762 (Ark. 1988).

Subdivision (5) held not to be unconstitutionally vague or overbroad. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), cert. denied, Coulter v. Arkansas, 502 U.S. 829, 112 S. Ct. 102 (1991).

The aggravating circumstance providing that the murder was committed for the purpose of avoiding or preventing an arrest, is not vague, overbroad, nor fails to narrow and channel the jury's discretion in determining the appropriateness of punishment. Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D. Ark. 1992), aff'd, 8 F.3d 614 (8th Cir. Ark. 1993).

This section adequately narrows the class of death-eligible defendants and enables the sentencer to make a principled distinction between those who deserve the death penalty and those who do not. Whitmore v. Lockhart, 8 F.3d 614 (8th Cir. Ark. 1993).

The homicide statutes' 1989 revisions, which upgraded “premeditated and deliberated” murder from first-degree murder to capital murder, did not violate the constitutional prohibition against sentencing guidelines that fail to sufficiently narrow jury discretion in death penalty cases, because under this section's revised capital sentencing scheme, the constitutionally-required narrowing function is provided by the “aggravating circumstance” requirement at the penalty phase. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

Subdivisions (5) and (8) held not to be so overbroad or vague as to be unconstitutional. 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 aggravating factor in subdivision (5), that defendant committed murder to avoid or prevent arrest, is not unconstitutionally vague and overbroad because the statutory definition is specific enough to guide the jury and to avoid arbitrary and capricious imposition of the death penalty. Wainwright v. Lockhart, 80 F.3d 1226 (8th Cir. Ark. 1996).

The “especially cruel” aggravating circumstance is not vague or overbroad. 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).

Subdivision (8) of this section is not unconstitutional. 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).

Duplication of an element of a capital offense by one or more aggravating circumstances does render the death penalty scheme unconstitutional. Cox v. Norris, 133 F.3d 565 (8th Cir. 1997), cert. denied, 525 U.S. 834, 119 S. Ct. 89 (1998).

—Effect of Amendments.

The legislature rewrote the aggravating circumstances in 1991 and based the statutory definitions of “especially cruel manner” and “especially depraved manner” on the Arizona Supreme Court's limiting interpretation of its “especially heinous, cruel or depraved” aggravating circumstance that had been found by the United States Supreme Court to pass constitutional muster. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

—Ex Post Facto Application.

The “cruel or depraved manner” aggravating circumstance, which had not been enacted at the time the crime was committed, is not a merely procedural provision and could not be applied ex post facto. 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).

—Standing.

Defendant had no standing to contest the constitutionality of the death penalty and the application of subdivision (8) in particular, because he received a lesser sentence. King v. State, 312 Ark. 89, 847 S.W.2d 37 (1993).

Purpose.

The reason for subdivision (3) is to allow the state to show that the defendant has a character for violent crimes or a history of committing such crimes. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

The purpose of aggravating circumstances is to qualify a defendant for the death penalty. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).

Applicability.

Subdivision (3) of this section applies to crimes not connected in time or place to the killing for which the defendant has just been convicted. 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); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

Accomplice Testimony.

Defendant's sentence of death after he was convicted of two counts of capital murder was appropriate under former § 41-1303(4) because a victim's mother testified that she found the victims' child in their home, near his father's lifeless body, and shotgun shells were found both in the living room, where the child was found, as well as in a bedroom in which was the child's crib. Prior to the murders occurring, defendant told an accomplice that children might be present and that those over eight would need to be eliminated as possible witnesses. Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008).

Additional Factors.

In 1993, § 5-4-602 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).

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 this section; 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).

Appellate Review.

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).

In a death penalty case, defendant's argument that the circuit court erred in permitting the jury to consider the death of the victim's unborn child as an aggravating circumstance was abandoned below and could not be raised on appeal because defendant did not conclusively show prejudice, and he failed to show that the Supreme Court would unquestionably grant him Rule 37 relief on the issue. Smith v. State, 2018 Ark. 277, 555 S.W.3d 881 (2018).

Avoiding Arrest.

A complaint and warrant for defendant's unlawful flight to avoid prosecution, was admissible to show that the shooting was for the purpose of avoiding or preventing a lawful arrest. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978).

The aggravating circumstance that the murder was committed to avoid arrest or to effect escape from custody was properly submitted to the jury and was not vague and overbroad where, under the facts of the case, the jury was justified in finding that defendant shot victim to increase his chances of avoiding arrest. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Aggravating circumstance (5) was not vague and overbroad as applied to case. 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 a consequence of every murder is the elimination of the victim as a potential witness, avoiding arrest is not necessarily an invariable motivation for killing. Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D. Ark. 1992), aff'd, 8 F.3d 614 (8th Cir. Ark. 1993).

The aggravating circumstance providing that the murder was committed for the purpose of avoiding or preventing an arrest does not unconstitutionally duplicate an element of the underlying felony of robbery, since avoiding arrest is not necessarily an invariable motivation for killing; the aggravating circumstance of avoiding arrest does not as a matter of logic necessarily duplicate an element of the underlying capital crime of robbery. Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D. Ark. 1992), aff'd, 8 F.3d 614 (8th Cir. Ark. 1993).

Killing an informant to eliminate a witness is the same thing as avoiding or preventing a lawful arrest and is an aggravating circumstance under subdivision (5) of this section. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

If a murder is committed during a robbery, it is reasonable to infer that the murder was committed to ensure that the defendant would not be reported and arrested; where defendant did not dispute the sufficiency of the finding that victim was murdered during a robbery, the court should not have have held that insufficient evidence existed that defendant committed the murder in order to avoid arrest. Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995).

Jury's guilt-phase finding that in the course of committing robbery, defendant caused the death of person under circumstances manifesting extreme indifference to the value of human life, did not conflict with its penalty-phase finding of the aggravating circumstance that the murder was committed purposely to avoid arrest; any higher intent requirement at the penalty phase simply supported the aggravating circumstance and further narrowed the class of murderers eligible for death penalty. Wainwright v. Lockhart, 80 F.3d 1226 (8th Cir. Ark. 1996).

The evidence supported the jury's conclusion that the defendant committed murder for the purpose of preventing his arrest on other crimes where the primary motivation for kidnapping, beating, and killing the victim was that he had informed the police about the criminal activities of the defendant and others. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999).

In a prosecution for the murder of the defendant's wife and her two sons, the evidence supported the submission of the aggravating circumstance that the murders were committed for the purpose of avoiding or preventing arrest where (1) the defendant first killed his wife and then killed one son in his bed and the other son as he entered the house, (2) the sons were the only potential witnesses to the homicide of the the wife, and (3) the nature of the sons' wounds did not support an inference that the defendant accidentally hit them with a knife when he was trying to fend them off. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

In a prosecution for capital felony murder on the basis that the defendant killed a child during the course of and in furtherance of raping her under circumstances manifesting extreme indifference to the value of human life, a jury finding of the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing arrest did not improperly elevate the requisite mental state for the charged crime since that crime required proof of deliberate conduct by the defendant and the requirement of deliberate conduct was consistent with the conclusion that the decision to kill the child, after raping her, was motivated by the defendant's desire or purpose to avoid arrest. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000).

In defendant's capital murder case, the court did not err by allowing the submission of the aggravating factor that the capital felony murder was committed to avoid or prevent an arrest since the jury could have readily found that defendant sought to kill both victims to eliminate them as witnesses and, thus, prevent his arrest. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004), cert. denied, Isom v. Arkansas, 543 U.S. 865, 125 S. Ct. 204 (2004).

Cruel or Depraved Manner.

There was substantial evidence before the jury to support the finding that the aggravating circumstance existed beyond a reasonable doubt in each of two counts of capital murder where (1) the means of inflicting death on one victim was serious physical abuse that created a substantial risk of death which, when continued and intensified, did finally result in death, and (2) the other victim watched the defendant's attack on his brother and sister and must have suffered indescribable mental anguish and uncertainty as to his own ultimate fate as the defendant turned his attack upon him. Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998).

There was substantial evidence that defendant committed the murder in an especially cruel manner where the victim was bludgeoned, anally raped, and strangled, while her young daughter sat, bound to a chair, in an adjoining room. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000), review or rehearing denied, 340 Ark. 10, 8 S.W.3d 482 (2000).

Evidence was sufficient to support a determination that a murder was committed in an especially cruel or depraved manner where an expert testified that the victim was alive when his hands and feet were tied, when he was kicked and stabbed, when he was shot in the chest, and when his face was cut from mouth to ear. 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).

Given that defendant caused “deep-seated injuries” to a 12-year-old girl when defendant raped her, and given the fact that defendant strangled her afterwards, buried her body in the woods, and then threw her clothes into a nearby creek, there was sufficient evidence to support the aggravating circumstance found under Ark. Code Ann. § 5-4-604(8). Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003), overruled in part, Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011).

Because there was ample testimony and evidence to support a finding that the victim suffered severe physical abuse as well as torture, there was sufficient evidence to support the jury's finding that the murder was committed in an especially cruel or depraved manner pursuant to subdivision (8)(A) of this section. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003).

There was sufficient evidence that the murder was committed in an especially cruel or depraved manner under subdivision (8)(A) of this section where, according to the state's expert, the victim would have lived several minutes after the first shot and a witness testified that several seconds passed between the first and second shots. 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).

State inmate, who was convicted of murder and sentenced to death, was not entitled to federal habeas relief based on a claim that the “especially cruel manner” aggravating circumstance under subdivision (8) of this section was unconstitutionally vague or overbroad; the United States Supreme Court had upheld a nearly identical statute against an Eighth Amendment vagueness challenge, and it was not unreasonable for the Arkansas Supreme Court to have concluded that the aggravating circumstance genuinely narrowed the class of death-eligible persons. 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 the death-row inmate's case, the jury's unanimous finding as an aggravating circumstance that capital murder was committed in an especially cruel or depraved manner under subdivision (8)(A) of this section was supported by constitutionally sufficient evidence since the circumstantial evidence in the record allowed a rational jury to find the requisite intent to inflict mental anguish, serious physical abuse, or torture. Williams v. Norris, 576 F.3d 850 (8th Cir. 2009).

After defendant's conviction of capital murder, the jury that sentenced him to death properly found the existence of aggravating factors involving cruelty and depravity, as evidence that defendant broke into the victim's apartment, waited hours for her to return, and then viciously attacked her as she walked in the door, stabbing her several times, was sufficient to prove the murder was especially cruel or depraved. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

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 set aside as having been arrived at unconstitutionally because the jury may have relied upon its finding that the defendant had a pecuniary motive for committing the crime, a fact which is necessarily true in all cases of capital felony murder involving robbery. 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).

In passing subdivision (3) of this section, the General Assembly intended to narrow the class of persons exposed to the death penalty to those with a predisposition for violent acts. The state, during the guilt and innocence phase, can always prove other acts done at the same time as the principal crime to show the aggravated nature of the crime charged; furthermore, subdivision (8) of this section (since amended) allows the state, during the penalty phase, to show the murder was done in a particularly heinous manner. The reason, then, for subdivision (3) is to allow the state to show that the defendant has a character for violent crimes or a history of such crimes. 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).

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).

It was error to have permitted the jury to find defendant guilty of capital murder on the basis that it was committed in the course of burglary where the jury was not allowed to consider the robbery or any purpose for the entry of the victim's home independent of the acts which resulted in his death. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988).

The death penalty may not be imposed unless the state can prove the existence of an “aggravating circumstance,” so as to genuinely narrow the class of persons eligible for 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).

Due Process.

Insofar as former provisions governing sentencing for capital felonies limited the jury's consideration of aggravating circumstances for sentencing purposes to those enumerated, but did not limit consideration of mitigating circumstances, it worked to the advantage rather than prejudice of a defendant and posed no problem of due process. 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).

Evidence was sufficient to find that the shooting at one victim was so closely connected in both time and place to the murder of other victims that it did not present a portrait of the defendant as having previously demonstrated a character for violent crimes or a history for committing such crimes so that it could not be used as an aggravating circumstance under subdivision (3). Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (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).

Substantial evidence held to support jury's finding that prior felony conviction was an aggravating circumstance. Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988).

Evidence was sufficient to establish the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing an arrest or affecting an escape from custody. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

Fear of Detection.

Fear of detection would be an aggravating circumstance, not a mitigating one. 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).

Death penalty verdict was not invalidated where jurors listed only aggravating factors permitted by this section and listed fear of detection as a mitigating factor; the juror's finding would not be disturbed since it was rational. Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988).

Great Risk of Death to One Other Than Victim.

Where other persons were in the direct line of fire of the defendant's gun, the trial court did not err in submitting to the jury the question whether he had created a great risk of death to one other than the victim. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978).

Where petitioner alleged that this section was unconstitutionally applied to him, since, at the penalty phase of the trial, the court instructed the jury that it could consider as an aggravating circumstance whether the defendant had knowingly created a great risk of death to a person other than the victim, the appellate court held that this ground was patently meritless, there being ample evidence that the petitioner knowingly created a great risk of death to a person other than the victim. Swindler v. Lockhart, 693 F. Supp. 760 (E.D. Ark. 1988), aff'd, 885 F.2d 1342 (8th Cir. 1989).

This section covers actual deaths even though only “risk” is mentioned. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).

Jury did not have to resort to speculation or conjecture to conclude that defendant knowingly placed an individual in great risk of death, as defendant fired his gun twice in her immediate direction and the second shot hit her in the arm. Defendant knew that the individual was standing next to another person, and knew that he was employing deadly force, having just killed his wife. Accordingly, the circuit court did not err in submitting that aggravating circumstance to the jury. Reid v. State, 2019 Ark. 363, 588 S.W.3d 725 (2019).

Harmless error.

In a prosecution for murder, any error in allowing the jury to consider the aggravating factor that the murder was committed in an especially cruel or depraved manner was harmless where three other aggravating factors were found to exist and no mitigating factors were found to exist. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

Impermissible Considerations.

Neither the savagery of the attack nor the sadistic mind of the attacker is an aggravating circumstance the jury is allowed to consider. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980); Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982).

Instructions.

Circuit judges are directed to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, Miller v. Arkansas, 450 U.S. 1035, 101 S. Ct. 1750 (1981), superseded by statute as stated in, Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994).

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 those convictions which involved 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); Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

The circuit judge should not submit to the jury any aggravating or mitigating circumstances that are completely unsupported by any evidence; however, if there is any evidence of the aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, Ford v. Arkansas, 459 U.S. 1022, 103 S. Ct. 389 (1982); Swindler v. Lockhart, 885 F.2d 1342 (8th Cir. 1989), cert. denied, 495 U.S. 911, 110 S. Ct. 1938 (1990).

Mandatory Sentence.

This section does not create a mandatory death sentence, since Awhatever 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. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

Multiple Deaths.

Using other homicides as aggravating factors is permissible. Cox v. Norris, 133 F.3d 565 (8th Cir. 1997), cert. denied, 525 U.S. 834, 119 S. Ct. 89 (1998).

In a prosecution for three murders, it was proper to allow the jury to consider the aggravating factor that the defendant caused the death of more than one person in the same criminal episode. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

Wicks exception for matters essential to consideration of the death penalty did not apply to the circuit court's failure to bring to the jury's attention that a “person” could not be an unborn child as it applies to the aggravating circumstances listed in this section; while the prosecutor chose not to file a separate homicide charge for the death of the victim's unborn child, he could have. Smith v. State, 2018 Ark. 277, 555 S.W.3d 881 (2018).

Parole.

Contention that felony conviction from which defendant was paroled did not amount to an aggravating circumstance was without merit. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978).

Pecuniary Gain.

The phrase “pecuniary gain” was a matter of such common understanding and practice that it could not be said that an ordinary man or juror would have to speculate as to its meaning in its context as an aggravating circumstance in capital murder. 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).

Imposition of the death penalty was justified where there was sufficient evidence that the murder was committed for pecuniary gain. Neal v. State, 261 Ark. 336, 548 S.W.2d 135 (1977), cert. denied, Neal v. Arkansas, 434 U.S. 878, 98 S. Ct. 231 (1977) (decision under prior law).

Whether the homicide was committed for pecuniary gain is a pertinent and proper fact for the jury's consideration in determining whether the death sentence should be imposed. 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).

In a capital murder case, there was sufficient evidence that defendant murdered the victim for pecuniary gain where defendant took the victim's car, television set, silverware, Bible, and other items of personal property from her home after he killed her. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006), cert. denied, Thessing v. Arkansas, 549 U.S. 891, 127 S. Ct. 193, 166 L. Ed. 2d 158 (2006).

In the death-row inmate's capital murder trial, the pecuniary gain statutory aggravating factor did not unconstitutionally fail to narrow the class of death-eligible offenders on the ground that it merely duplicated an element of the underlying crime of felony murder during the course of a robbery, because the jury in the inmate's case was not instructed that the felony underlying the charge of capital murder was robbery; rather, the jury was instructed that the underlying felony was kidnapping, pursuant to § 5-10-101(a)(1)(iii), and that, consistent with the statutory definition of kidnapping under § 5-11-102(a)(3)-(5), it had to find that the inmate had restrained the victim with the purpose of inflicting physical injury upon her or engaging in sexual intercourse or sexual contact, or of committing aggravated robbery or any flight thereafter. After convicting the inmate of capital murder, the jury found in the penalty phase that he committed the murder for pecuniary gain, consistent with subdivision (6) of this section; thus, there was no duplication of constitutional dimension or otherwise. Williams v. Norris, 576 F.3d 850 (8th Cir. 2009).

Prior Offenses.

Where accused admitted that he had previously pleaded guilty to several named charges, the fact that there was no crime technically labeled as such when he pleaded guilty to them did not prohibit the state from introducing those judgments of conviction as aggravating circumstances. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, Miller v. Arkansas, 450 U.S. 1035, 101 S. Ct. 1750 (1981), superseded by statute as stated in, Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994).

Where the trial court allowed the jury to consider defendant's single previous conviction without supplying any details about the offense, the offense could not be considered as a felony creating the substantial risk of death or serious physical injury to another person, absent supporting proof, since the offense as defined could be committed with no possibility of violence or injury to anyone. 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).

In order for an offense to be admissible as an aggravating circumstance, pursuant to this section, the felony committed must include the use or threat of violence to another person, or the creation of substantial risk of death or serious physical injury to another person; sometimes a burglary could include this risk. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, Ford v. Arkansas, 459 U.S. 1022, 103 S. Ct. 389 (1982).

It was error for the trial court to allow evidence of prior crimes which did not involve the use or threat of violence or create substantial risk of death or serious physical injury to another person as an aggravating circumstance; neither were these prior felonies proper for the purpose of anticipating a showing of lack of prior convictions as a mitigating circumstance. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, Ford v. Arkansas, 459 U.S. 1022, 103 S. Ct. 389 (1982).

Evidence of a prior manslaughter conviction is admissible as an aggravating circumstance. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982), overruled in part, White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

The penalty phase of capital murder cases ought not to be turned into a separate trial for other crimes, but the legislature has made it plain in amending subdivision (3) that the state can offer evidence that a defendant “committed” another crime which involves an element of violence. Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983).

When the state in the penalty phase of capital murder cases attempts to prove another unrelated crime, without having evidence of a conviction, it does so at some risk and the trial court must prevent prejudicial evidence from reaching the jury; also, a defendant has a right to present rebutting evidence in such a case, just as in a trial. Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983).

Uncorroborated testimony was admissible where it was offered to prove aggravating circumstance that defendants previously committed a crime of violence. 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).

This section prohibits a person convicted of a felony from possessing a firearm, regardless of the fact that the prior felony conviction is subject to collateral attack, and this prohibition continues until the conviction is either successfully attacked and set aside, or a specific pardon is granted; therefore, there was no error in the trial court admitting evidence of the defendant's prior felony conviction which the defendant claimed was subject to collateral attack on constitutional grounds. Reynolds v. State, 18 Ark. App. 193, 712 S.W.2d 329 (1986).

Where the crimes used to prove an aggravated circumstance involved other victims, in another place and previously in time to the principal crime for which defendant was convicted, they were properly used as an aggravating circumstance. 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).

Although § 5-4-602(4) 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. Evidence 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, this section, the aggravating circumstances statute, 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).

The admission of unsubstantiated allegations of prior offenses is prejudicial error in the penalty phase of the trial. While the state is not limited to admission of a prior conviction in proving that a defendant committed a prior felony, mere allegations do not constitute proof. 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).

Constitutional error occurred during the penalty phase when the prosecutor used three nonviolent felonies as a non-statutory aggravating circumstance. Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993), modified, 28 F.3d 832 (8th Cir. 1994).

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).

Implicit in the phrase in subdivision (3) of this section “previously committed another felony,” which itself is supported by the statutory elaboration of the element of “the use of threat of violence” and “the creation of a substantial risk of death or serious physical injury,” is at least the contemplation of a conviction; indeed, proof of a conviction serves to establish the aggravating circumstance of a previous violent felony. 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).

The fundamental thrust of this section is prospective; naturally, a violent felony that was committed after the killing in question (but which resulted in a conviction prior to the sentencing hearing) would have considerable bearing on a convicted murderer's propensity to “strike again.” 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).

A violent felony committed after a crime that warrants imposition of the death penalty may be considered as an aggravating circumstance in the sentencing phase when the conviction for the violent felony was entered prior to the sentencing trial. 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).

A death sentence that is predicated upon proof of the defendant's conviction of an unrelated prior violent felony must be vacated if the prior violent felony is, subsequent to the imposition of the death penalty, reversed. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

The prosecution may prove previously uncharged prior felonies to establish the aggravating circumstance in subdivision (3). 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).

This provision applies to crimes not connected to time and place of the killing for which the defendant has just been convicted. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).

There was no “double-counting” of aggravating factors where defendant (1) was shown to have a prior violent criminal history; and (2) had been imprisoned for that violent crime. Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997).

Evidence held insufficient to establish that the defendant committed a “prior violent felony”; evidence that the defendant abducted his niece and killed his brother in North Carolina did not establish that such acts were classified as felonies in North Carolina. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).

Evidence was sufficient to establish that the defendant had previously committed another felony and that the prior felony necessarily involved use or threat of violence to another where the state introduced into evidence a criminal information and conviction judgment reflecting that the defendant had previously been found guilty of first degree battery. Collins v. State, 338 Ark. 1, 991 S.W.2d 541 (1999).

The trial court did not err in permitting the state to establish a subsection (3) aggravating circumstance by admission of a kidnapping conviction based upon an abduction occurring subsequent to the capital murder at issue. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

The jury's death-penalty deliberations were not adversely affected by any alleged mislabeling in the jury instructions of the defendant's three prior violent felonies as three aggravating circumstances rather than as three felonies supporting one aggravating circumstance. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied, Engram v. Arkansas, 531 U.S. 1081, 121 S. Ct. 783 (2001).

Because defendant admitted beating a man “half to death” and defendant's battery conviction and photographs of the battery victim were introduced into evidence, there was sufficient evidence to support the jury's finding of a prior felony conviction involving violence pursuant to subdivision (3) of this section. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003).

Consideration of a death-row inmate's prior conviction for a robbery that he committed when he was 15 years old as an aggravating factor under subdivision (3) of this section did not violate the Eighth Amendment because, in 1988, years before the inmate's capital murder trial, a plurality of the United States Supreme Court wrote that execution of a 15-year-old would violate the Eighth Amendment; thus, the argument that the inmate belatedly sought to raise before the federal habeas court was not so novel that its legal basis was not reasonably available to him in state court. Williams v. Norris, 576 F.3d 850 (8th Cir. 2009).

Proof.

The same degree of proof is not required to sustain a finding that an aggravating or mitigating circumstance exists, as would be required to sustain a conviction if that circumstance was a separate crime. 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).

Where jury was presented with proof of an aggravating circumstance that defendant had been convicted of felonies in other states but no details of the crimes were provided, there was no requirement that the state try a prior felony conviction a second time or that it present evidence that a prior conviction had as an element the use or threat of violence. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Where the mandated narrowing function was performed at the guilt phase, the fact that the aggravating circumstance duplicated one of the elements of the crime did not make the sentence constitutionally infirm. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

The trial court did not err in admitting photographs of the victim at the penalty phase. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

In a capital murder case, there was sufficient evidence that the victim had a temporary or permanent physical disability where the victim was 67 years old, overweight, and had recently undergone chemotherapy and radiation treatments; in light of the fact that the victim was beaten to death without being able to flee or defend herself and the fact that he had been to her house before, substantial evidence existed to support the jury's verdict regarding the aggravating circumstance. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006), cert. denied, Thessing v. Arkansas, 549 U.S. 891, 127 S. Ct. 193, 166 L. Ed. 2d 158 (2006).

Time Limitations.

While the aggravating circumstance in subdivision (3) of this section does not place any time restriction on which violent crimes may be considered, the jury must still find, pursuant to § 5-4-603(a)(3), 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).

Victim Impact Evidence.

The Victim Impact Statute, § 5-4-602(4), 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 this section. Noel v. Norris, 194 F. Supp. 2d 893 (E.D. Ark. 2002).

The presentation of victim impact evidence does not constitute a departure from the normal statutory sentencing scheme in which aggravating and mitigating factors are weighed such as to permit a jury to impose death for an impermissible reason such as sympathy or indignation. 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).

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).

In a capital murder case, the State did not suggest that victim-impact evidence should be viewed as an aggravating circumstance. Instead, during closing argument, the State urged the jury to weigh defendant's emotional distress against the emotional distress he inflicted on his family. The circuit court did not abuse its discretion in allowing the State's argument. Reid v. State, 2019 Ark. 363, 588 S.W.3d 725 (2019).

Cited: Clark v. State, 264 Ark. 630, 573 S.W.2d 622 (1978); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Collins v. Lockhart, 545 F. Supp. 83 (E.D. Ark. 1982); Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983); Hayes v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726 (1984); Simmons v. Lockhart, 626 F. Supp. 872 (E.D. Ark. 1985); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987); Gardner v. State, 297 Ark. 541, 764 S.W.2d 416 (1989); Perry v. Lockhart, 871 F.2d 1384 (8th Cir. Ark. 1989); Singleton v. Lockhart, 871 F.2d 1395 (8th Cir. Ark. 1989); Hill v. Lockhart, 719 F. Supp. 1469 (E.D. Ark. 1989); Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989); Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989); Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990); Hill v. Lockhart, 927 F.2d 340 (8th Cir. Ark. 1991); Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991); Snell v. Lockhart, 791 F. Supp. 1367 (E.D. Ark. 1992); Hill v. Lockhart, 791 F. Supp. 1388 (E.D. Ark. 1992); Pickens v. Lockhart, 802 F. Supp. 208 (E.D. Ark. 1992); Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994); Wainwright v. Norris, 872 F. Supp. 574 (E.D. Ark. 1994); Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943; Lee v. State, 327 Ark. 692, 942 S.W.2d 231; Fretwell v. Norris, 133 F.3d 621 (8th Cir. 1998); Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Thomas v. State, 370 Ark. 70, 257 S.W.3d 92; Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011).