Camargo v. State

Rafael CAMARGO v. STATE of Arkansas

CR 96-780                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 17, 1997


1.   Criminal law -- capital murder and first-degree murder statutes
     constitutional. -- There is no constitutional infirmity in the
     overlapping of the "premeditated and deliberated" mens rea in
     the capital murder statute and the "purposeful" mens rea in
     the first-degree murder statute; it is impossible to avoid the
     use of general language in the definition of offenses, and one
     or the other offense may be established depending on the
     testimony of witnesses. 

2.   Criminal law -- narrowing of death-eligible class. -- While the
     language in the first-degree murder statute might have been
     chosen to lighten the possible punishment that might be
     imposed for conduct falling within the strict definition of
     capital murder, narrowing of the class of persons eligible for
     the death penalty does not have to take place at the
     "definition stage" of the proceedings; the legislature may
     narrow the definition of capital murder in the statute, or it
     may more broadly define capital murder and provide for
     narrowing of the death-eligible class at the penalty phase of
     the trial.

3.   Criminal law -- required narrowing of death-eligible calss provided by Ark.
     Code Ann.  5-4-603(a) -- appellant's argument meritless. -- Arkansas
     Code Annotated section 5-4-603(a) provides the required
     narrowing of the death-eligible class by providing that the
     jury should impose a death sentence only if it unanimously
     returns written findings that (1) aggravating circumstances
     exist beyond a reasonable doubt; (2) aggravating circumstances
     outweigh beyond a reasonable doubt all mitigating
     circumstances found to exist; and (3) aggravating
     circumstances justify a sentence of death beyond a reasonable
     doubt; based upon the statutory narrowing of the death penalty
     during the sentencing phase, the supreme court held meritless
     appellant's argument that Ark. Code Ann.  5-10-102, the
     first-degree murder statute, was unconstitutional.

4.   Evidence -- photographs -- admission and relevancy within trial court's
     discretion. -- The admission and relevancy of photographs is a
     matter within the sound discretion of the trial court;
     although highly deferential to the trial court's discretion in
     these matters, the supreme court has rejected a carte blanche
     approach to admission of photographs; the supreme court
     rejects the admission of inflammatory pictures where claims of
     relevance are tenuous and prejudice is great and expects the
     trial court to carefully weigh the probative value of
     photographs against their prejudicial nature; the supreme
     court requires the trial court first to consider whether such
     evidence, although relevant, creates a danger of unfair
     prejudice, and then to determine whether the danger of unfair
     prejudice substantially outweighs its probative value.

5.   Evidence -- photographs -- when admissible. -- Even the most gruesome
     photographs may be admissible if they tend to shed light on
     any issue, to corroborate testimony, or if they are essential
     in proving a necessary element of a case, are useful to enable
     a witness to testify more effectively, or enable the jury to
     better understand testimony; other acceptable purposes are to
     show the condition of the victim's bodies, the probable type
     or location of the injuries, and the position in which the
     bodies were discovered; if a photograph serves no valid
     purpose and could only be used to inflame the jury's passions,
     it should be excluded; the same guidelines that apply to
     photographs also apply to videotapes.

6.   Criminal law -- intent -- nature and extent of victim's wounds relevant to
     showing of. -- The nature and extent of a victim's wounds is
     relevant to a showing of intent, which may be inferred from
     the type of weapon used, the manner of use, and the nature,
     extent, and location of the wounds.

7.   Evidence -- photographs -- pictures helped jury understand testimony --
     trial court did not abuse discretion in admitting. -- Where the
     photographs helped the jury to understand the testimony about
     where and in what condition the body and the shotgun shells
     were found and were more clearly visible than the video, which
     was admissible to aid the jury's perception of the crime
     scene, the supreme court, comparing the pictures introduced to
     those that were not used, concluded that the trial court
     carefully compared the two sets of pictures, made a well-
     reasoned determination, and did not abuse its discretion in
     admitting the pictures with the videotape; further, evidence
     of close-range shootings is indicative of premeditation and
     deliberation.

8.   Evidence -- photographs -- trial court did not abuse discretion in
     admitting autopsy pictures. -- The supreme court held that the
     trial court did not abuse its discretion in admitting autopsy
     pictures where they clearly assisted the state medical
     examiner in describing the location of the victims' wounds and
     the close-range nature of the gunshots, matters that were
     clearly relevant in establishing premeditation and
     deliberation, among other things.

9.   Appeal & error -- exceptions to contemporaneous-objection rule. -- An
     argument for reversal will not be considered in the absence of
     an appropriate and timely objection, subject to the following
     four narrow exceptions:  (1) death penalty cases involving an
     error in a matter essential to the jury's consideration of the
     death penalty itself; (2) cases where the trial judge made an
     error of which the appellant had no knowledge; (3) cases where
     the trial judge neglected his or her duty to intervene; and
     (4) cases involving evidentiary errors which affected the
     appellant's substantial rights.

10.  Appeal & error -- trial court failed to require jury to render verdict
     form indicating statutory findings -- objection not required to preserve
     issue for appellate review. -- Where the trial court failed to
     require the jury to render a verdict form that indicated that
     it had made the three findings necessary for imposition of the
     death penalty as required by Ark. Code Ann.  5-4-603, the
     supreme court, noting that the error concerned a matter
     essential to the jury's imposition of the death penalty
     itself, did not require an objection to preserve the issue for
     appellate review.

11.  Criminal law -- death penalty -- sentencing phase -- narrowing function. -
     - Following the guilt phase of the trial, the sentencing phase
     of the trial is the means by which the capital murder statute
     is sufficiently narrowed to meet constitutional challenges for
     vagueness because of the overlap between degrees of murder;
     the supreme court has upheld the capital murder statute
     against charges that it does not sufficiently narrow the class
     of persons that can be executed because the required findings
     of aggravating and mitigating circumstances during the
     sentencing phase perform that function. 

12.  Criminal law -- death penalty -- jury cannot impose sentence of death
     until it finds that all three parts of Ark. Code Ann.  5-4-603(a) apply.
     -- A jury cannot impose a sentence of death until it
     specifically finds that all three parts of Ark. Code Ann.  5-
     4-603(a) apply.

13.  Criminal law -- death penalty -- failure of jury unanimously to return
     written finding that aggravating circumstances justified death sentence
     beyond reasonable doubt was error requiring reversal and remand for new
     sentencing. -- The supreme court determined that the failure of
     the jury unanimously to return a written finding that
     aggravating circumstances justified a sentence of death beyond
     a reasonable doubt was an error requiring reversal of the
     sentencing phase of the case imposing the death penalty; the
     court remanded the matter to the trial court for a new
     sentencing procedure.

14.  Criminal law -- death penalty -- sentencing phase -- appellant permitted
     to argue mental retardation as mitigating circumstance to jury -- no
     deliberate exclusion. -- Where the trial court refused to allow a
     modified instruction that added mental retardation as a
     mitigating circumstance, noting that appellant could argue
     this factor to the jury and that, if it so found, the jury
     could add it as a mitigating circumstance under "Other," the
     supreme court held that there was no deliberate exclusion
     amounting to a presumptively invalid death sentence because
     appellant was permitted to make his argument to the jury; when
     the defendant is allowed to present the possible mitigators
     and the jury is told it is not limited to the mitigators
     listed on the form, it is not error to submit the standard
     form to the jury in lieu of a form proposed by the defendant.


     Appeal from Crawford Circuit Court; Floyd G. Rogers, Judge;
affirmed in part; reversed in part; and remanded for new
sentencing.
     Robert C. Marquette, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly K. Hill, Deputy Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     Appellant Rafael Camargo was convicted of two counts of
capital murder and sentenced to death.  On October 31, 1994, he
killed his former girlfriend, Deanna Petree, and her fifteen-month-
old son, Jonathan.  The crimes took place in the home Deanna and
Jonathan shared with her mother and three brothers.  Her mother and
two of the brothers testified that they saw appellant shoot Deanna. 
Robert, the oldest brother, testified that appellant also pointed
the shotgun at him and pulled the trigger; but the gun failed to
fire.  All the survivors took refuge outside the house and heard
additional shots being fired.  They saw appellant flee from the
house before the police arrived.  When the police arrived, they
found Deanna and Jonathan shot to death in the house.  Appellant
does not challenge sufficiency of the evidence against him, but we
have reviewed the record and find substantial evidence to support
the convictions of capital murder.  Ark. Sup. Ct. R. 4-3(h).
     On appellant's motion, he was committed to the state hospital,
found competent to stand trial, and found to be sane at the time
the crimes were committed, although he was assessed as having
limited intellectual capacity.  His language skills are in Spanish,
and he has little ability to understand or speak English.  On
appeal, he relies on six points for reversal.  We find no error in
the guilt phase of the proceedings but find error in the sentencing
phase.  Therefore, we affirm his convictions for capital murder,
but reverse and remand his two sentences of death.
     Appellant's assignments of error in the guilt phase include a
constitutional challenge to Arkansas's capital murder laws and
allegations of error in admitting a videotape and photographs.  He
argues that the court erred during the sentencing phase in refusing
to submit a modified form of jury instructions focusing attention
upon the mitigating circumstance of his mental retardation, and
that the jury erred in not considering such a mitigating
circumstance.
     Appellant also contends that the death sentences are invalid
because the jury did not complete written findings "[t]hat the
aggravating circumstances justify beyond a reasonable doubt a
sentence of death" as required by law and the verdict form number
three.
Guilt Phase
   Prior to trial, appellant filed a motion to quash the
information on the grounds that the Arkansas death penalty laws are
unconstitutional.  His argument is that Ark. Code Ann.  5-10-102
(Repl. 1993), is unconstitutional because it fails to adequately
narrow the class of persons eligible for the death penalty.  He
argues that the statute does not enable the State to administer the
death penalty "in a way that can rationally distinguish between
those individuals for whom death is appropriate and those for whom
it is not."  Further, he contends that the definition of
"premeditation and deliberation," which this court has held can be
formed instantaneously, is unconstitutionally vague.  We have
discussed these arguments in previous decisions, and we adhere to
our prior holdings.
     On numerous occasions, we have held that there is no
constitutional infirmity in the overlapping of the "premeditated
and deliberated" mens rea in the capital murder statute and the
"purposeful" mens rea in the first-degree murder statute.  White v.
State, 298 Ark. 55, 764 S.W.2d 613 (1989).   See also, e.g., Nooner
v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Greene v. State, 317
Ark. 360, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328,
878 S.W.2d 391 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992);
Van Pelt v. State, 306 Ark. 634, 816 S.W.2d 607 (1991); Smith v.
State, 306 Ark. 483, 815 S.W.2d 922 (1991). The court has explained
that it is impossible to avoid the use of general language in the
definition of offenses, and that one or the other offense may be
established depending on the testimony of witnesses.  White, 298
Ark. at 59, 764 S.W.2d  at 616.  While the language in the first-
degree murder statute might have been chosen to lighten the
possible punishment that might be imposed for conduct falling
within the strict definition of capital murder, id., the Supreme
Court has held that narrowing of the class of persons eligible for
the death penalty does not have to take place at the "definition
stage" of the proceedings.  Lowenfield v. Phelps, 484 U.S. 231
(1988).
     The legislature may narrow the definition of capital murder in
the statute, or it may more broadly define capital murder and
provide for narrowing of the death-eligible class at the penalty
phase of the trial.  Id.  Lowenfield was applied in Johnson v.
State, 308 Ark. 7, 823 S.W.2d 800 (1992), in which this court held
that Ark. Code Ann.  5-4-603(a) (1987 & Repl. 1993) provides the
required narrowing by providing that the jury should impose a death
sentence only if it unanimously returns written findings that: (1)
aggravating circumstances exist beyond a reasonable doubt; (2)
aggravating circumstances outweigh beyond a reasonable doubt all
mitigating circumstances found to exist; and (3) aggravating
circumstances justify a sentence of death beyond a reasonable
doubt.  Johnson, 308 Ark. at 17, 823 S.W.2d  at 800-01.  Based upon
the statutory narrowing of the death penalty during the sentencing
phase, appellant's argument that the statute is unconstitutional
has no merit.
     We next consider appellant's claim that the admission into
evidence of a video tape and photographs of the crime scene, was
error.  The video tape and photographs are gruesome in their
depiction of a crime scene of great violence and brutality. 
Appellant urges that these exhibits were both cumulative and
inflammatory.  In connection with our review of this issue, we also
consider whether it was error to admit two autopsy photographs into
evidence over appellant's objection.  Ark. Sup. Ct. R. 4-3(h).   
     We have often stated that the admission and relevancy of
photographs is a matter within the sound discretion of the trial
court.  Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). 
Although highly deferential to the trial court's discretion in
these matters, this court has rejected a carte blanche approach to
admission of photographs.  Berry v. State, 290 Ark 223, 227, 718 S.W.2d 447, 450 (1986).  We have cautioned against "promoting a
general rule of admissibility that essentially allows automatic
acceptance of all photographs of the victim and crime scene the
prosecution can offer."  Id. at 228, 781 S.W.2d  at 450.  This court
rejects the admission of inflammatory pictures where claims of
relevance are tenuous and prejudice is great, and expects the trial
court to carefully weigh the probative value of photographs against
their prejudicial nature.  Id. at 228-29, 781 S.W.2d  at 450.  We
require the trial court to first consider whether such evidence,
although relevant, creates a danger of unfair prejudice, and then
to determine whether the danger of unfair prejudice substantially
outweighs its probative value.  Beed v. State, 217 Ark. 526, 609 S.W.2d 898 (1980).   Relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice.  Ark. R. Evid. 403.
     Even the most gruesome photographs may be admissible if they
tend to shed light on any issue, to corroborate testimony, or if
they are essential in proving a necessary element of a case, are
useful to enable a witness to testify more effectively, or enable
the jury to better understand testimony.  Weger v. State, 315 Ark.
555, 869 S.W.2d 688 (1994).  Other acceptable purposes are to show
the condition of the victim's bodies, the probable type or location
of the injuries, and the position in which the bodies were
discovered.  Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). 
Of course, if a photograph serves no valid purpose and could only
be used to inflame the jury's passions, it should be excluded. 
Berry v. State, 290 Ark 223, 718 S.W.2d 447 (1986).  The same
guidelines that apply to photographs also apply to videotapes. 
Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).
     An essential element of these crimes was the degree of intent;
to secure a conviction for capital murder, the State had to prove
that appellant caused the victims' deaths "with [a] premeditated
and deliberated purpose."  Ark. Code Ann.   5-10-101(1)(4).  We
have held that the nature and extent of a victim's wounds is
relevant to a showing of intent, which may be inferred from the
type of weapon used, the manner of use, and the nature, extent, and
location of the wounds.  Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Dansby v. State, 319 Ark. at 515, 893 S.W.2d  at 336. 
In Dansby, we pointed out that upon considering evidence of
multiple wounds, the "jury could have easily inferred that
appellant fired multiple shots into both victims in a premeditated
and deliberated manner."  Id.

     After showing the video to the jury over appellant's
objection, the State advised the court that it had two sets of
photographs of the crime scene.  It had a set of eight to ten
photos that it had shown to the defense and planned to introduce. 
It asked that the second set, consisting of fifteen to twenty
photographs, be made an exhibit to the court but not to the jury. 
The State wanted to show that the photographs had been examined,
and that the least inflammatory ones had been chosen for
publication to the jury.
     The State originally proposed ten photographs for viewing by
the jury.  There were four photographs of Jonathan, of which
appellant asked that the State select Exhibit Four to show one
angle and Exhibit Six to show another, and eliminate the other two. 
The State agreed to eliminate one.  The remaining six photographs
were of Deanna's body at the crime scene.  Appellant made a
continuing objection as the State introduced these as Exhibits Four
through Ten, which were all admitted.
     The three pictures of Deanna are all of different angles. 
Exhibit Eight shows Deanna's body from a back angle lying in the
hall with a shotgun casing directly under her.  Exhibit Nine shows
her body from the front angle.  Officer Hurst testified that
Exhibit Eight showed a different shotgun casing than the one in the
previous exhibit.  Exhibit Nine shows an angle not visible in
Exhibit Eight, and Exhibit Ten depicts a close-up view of the head
wound that is not presented by any of the other pictures.  During
the state medical examiner's testimony, appellant objected to a
close-up autopsy picture of Deanna's head and shoulders that
depicted her chest wounds and part of her head wound.  He also
objected to a close-up autopsy shot of Jonathan from the waist up
that clearly shows that part of his head is missing.  Appellant
objected to these as cumulative, and the court overruled, stating
that Dr. Sturner, the state medical examiner, had indicated that
they would be helpful in explaining the location of the wounds and
the stippling.
     The videotape, which runs about four minutes, begins in the
living room.  It shows Jonathan lying on the couch with a massive
head wound, and it shows the location of where the blood and the
shots went.  It continues down the hall, showing Deanna's body
lying in a pool of blood and where the blood and shots went around
her.  There are brief shots of the other rooms in the house.  The
videotape is somewhat dark and does not show details as clearly as
the still shots.  However, it provides the viewer a dimensional
perspective of the crime scene and the size of the house that the
still shots do not give.
     The pictures helped the jury to understand the testimony about
where and in what condition the body and the shotgun shells were
found.  Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987).  They
are more clearly visible than the video, which was admissible to
aid the jury's perception of the crime scene.  Comparing the
pictures to the ones that were not used, and which would have been
cumulative, we have concluded that the trial court carefully
compared the two sets of pictures, made a well-reasoned
determination, and did not abuse its discretion in admitting the
pictures with the videotape.  See Weger, 315 Ark. at 560-61, 869 S.W.2d  at 691.  Further, evidence of close-range shootings is
indicative of premeditation and deliberation.
     Finally, the trial court did not abuse its discretion in
admitting the autopsy pictures.  Hickson v. State, 312 Ark. 171,
847 S.W.2d 691 (1993).  These pictures clearly assisted Dr. Sturner
in describing the location of the victims' wounds and the close-
range nature of the gunshots; again, matters that were clearly
relevant in establishing premeditation and deliberation, among
other things.
Sentencing Phase
     Appellant challenges the validity of his death sentences
because the jury did not specify in writing "that the aggravating
circumstances justify beyond a reasonable doubt a sentence of
death."  The State contends that review of this challenge is
procedurally barred because appellant failed to object when given
the opportunity to do so.
     The State is correct that in numerous cases we have reiterated
our fundamental rule that an argument for reversal will not be
considered in the absence of an appropriate and timely objection. 
However, in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we
recognized the following four extremely narrow and strictly guarded
exceptions to the objection requirement:  (1) death penalty cases
involving an error in a matter essential to the jury's
consideration of the death penalty itself; (2) cases where the
trial judge made an error of which the appellant had no knowledge;
(3) cases where the trial judge neglected his or her duty to
intervene; and (4) cases involving evidentiary errors which
affected the appellant's substantial rights.  Id. at 785, 606 S.W.2d  at 369.
     It is the first exception for death penalty cases involving a
matter essential to the jury's consideration of the death penalty
that is applicable to the facts at hand.  Again, as with the other
three exceptions, this is a narrow exception which this court has
rarely applied.  In Wells v. State, 193 Ark. 1092, 104 S.W.2d 451
(1937), we allowed an exception to the objection requirement where
the court failed to require the jury to designate the degree of
murder, as required by the statute, so that the jury might have
imposed the death penalty for homicide below first-degree murder. 
Likewise, in Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943),
we did not require an objection where the court failed to tell the
jury that it had the option of imposing a sentence of life instead
of the death penalty.  Both cases involved an error that was
"essential to the jury's imposition of the death penalty itself,"
and thus we did not require an objection.  
     Similarly, in Bowen v. State, 322 Ark. 483, 911 S.W.2d 555
(1995), we recognized this exception to the "plain error" rule, and
we expressly applied the holdings from Smith and Wells.  We held
that the consideration during the sentencing phase of a statutorily
prescribed aggravating circumstance enacted following the crime
required reversal, notwithstanding a failure to bring the issue to
the attention of the trial court.  Id. at 499, 911 S.W.2d  at 562.
      In this case, the trial court failed to require the jury to
render a verdict form that indicated that the jury had made the
three findings necessary for imposition of the death penalty as is
required by Ark. Code Ann.  5-4-603 (Repl. 1993).  Thus, as in
Wells, Smith, and Bowen, the error concerned a matter "essential to
the jury's imposition of the death penalty itself," and we
therefore do not require an objection to preserve the issue for
appellate review.
     In reaching this holding, we are not unmindful of our previous
declaration in Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978),
where we said:
     In cases tried after this date [July 3, 1978], we will
     not consider an assertion of error in the verdict form,
     when the issue has not been raised in the trial court in
     any manner or some adequate reason for doing so is
     disclosed by the record.
Goodwin, however, was not a death penalty case, and thus, the
verdict-form error was not regarding a matter essential to the
imposition of the death penalty itself.  Therefore, the Wicks
exception was not applicable.
     Hence, we have concluded that despite the failure to object,
the appellant's assertion of failure to comply with Ark. Code Ann.
 5-4-603 requirements for the unanimous return of written findings
by the jury in a death case is an issue properly before this court
for review. 
     Following the guilt phase of the trial, the sentencing phase
of the trial is the means by which the capital murder statute is
sufficiently narrowed to meet constitutional challenges for
vagueness because of the overlap between degrees of murder.  See
Lowenfield v. Phelps, 484 U.S. 231 (1988).  We have upheld the
capital murder statute against charges that it does not
sufficiently narrow the class of persons that can be executed
because the required findings of aggravating and mitigating
circumstances during the sentencing phase perform that function. 
Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995); Dansby v.
State, 319 Ark. at 529, 893 S.W.2d  at 343; Cox v. State, 313 Ark.
184, 853 S.W.2d 266 (1993); Johnson v. State, 308 Ark. at 17, 823 S.W.2d  at 801-02.
     The legislative intent is articulated in the portion of Ark.
Code Ann.  5-4-601 that reads as follows:
(a)  It is the intention of the General Assembly of the
State of Arkansas, in enacting this subchapter, to
specify the procedures and standards pursuant to which a
sentencing body must conform in making a determination as
to whether a sentence of death is to be imposed upon a
conviction of capital murder.
Id.  5-4-601(a).
     The findings required for a death sentence are expressed in
Ark. Code Ann.  5-4-603, which provides as follows:
(a)  The jury shall impose a sentence of death if it
unanimously returns written findings that:
     (1)  Aggravating circumstances exist beyond a
     reasonable doubt; and
     (2)  Aggravating circumstances outweigh beyond a
     reasonable doubt all mitigating circumstances found
     to exist; and 
     (3)  Aggravating circumstances justify a sentence
     of death beyond a reasonable doubt.
Id.  5-4-603(a).  Subsection (b) of  5-4-603 provides that the
jury shall impose a sentence of life imprisonment without parole if
it finds that any one of the above findings does not exist. 
Subsection (c) provides the following:
(c)  If the jury does not make all findings required by
subsection (a) of this section, the court shall impose a
sentence of life imprisonment without parole.
Id.  5-4-603(c).
     In this case, the jury, after finding two aggravating
circumstances and one mitigating circumstance, recommended a death
sentence for appellant.  The aggravating circumstances were his
prior felony, which involved physical violence, and the fact that
during the commission of these offenses, he put another person in
danger.  The mitigating circumstance was that he adjusted well to
confinement. 
     The standard "Conclusions" form was used for each victim.  The
form provides for the jury to indicate as follows:
(a) ( ) One or more aggravating circumstances
did exist beyond a reasonable doubt, at the
time of the commission of the capital murder.
(b) ( ) The aggravating circumstances outweigh
beyond a reasonable doubt any mitigating
circumstances found by the jury to exist.
(c) ( ) The aggravating circumstances justify
beyond a reasonable doubt a sentence of death.
In accordance with statutory requirements for written findings, the
instructions on the form direct the jury that if it does not
unanimously agree to (a), to skip (b) and (c) and sentence the
defendant to life imprisonment without parole.  If the jury checks
(a), but does not unanimously agree on (b), it is to skip (c) and
enter a sentence of life without parole.  If the jury checks (a)
and (b), but skips (c), it is to enter a sentence of life without
parole.  Only if the jury checks (a), (b), and (c), may it
recommend the death sentence.  On the forms for both victims, only
(b) is checked.  Yet, the jury proceeded to choose the death
penalty on the verdict form.  When the court read the "Conclusions"
form, it noted that the jury had marked (b) only.  When asked by
the court if there was any question, both attorneys replied, "No,
your honor."  The court then polled the jury by asking, "Is this
your verdict?"  Each juror answered, "Yes."  The trial court then
entered sentences of death.
     In Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), we
noted that when considering a challenge to the death penalty
statute as a "mandatory death sentence," that a "jury cannot impose
a sentence of death until it specifically finds that all three
parts of the statute apply."  Id. at 397, 713 S.W.2d  at 238.
Before the enactment of the present statutes, we made it clear in
a long line of cases that the jury had to comply with the
requirements of statutes establishing degrees of murder for which
death may be imposed.  Soon after the time Arkansas began its
existence as a state, on December 17, 1838, an act was passed
reading as follows: "The jury shall, in all cases of murder, on
conviction of the accused, find by their verdict whether he be
guilty of murder in the first or second degree ...," and further
providing that in the event of a guilty plea, the degree of the
crime shall be found by the jury.  Pope's Digest  4041.
     We have consistently held that the death sentence may not be
imposed unless the jury makes the required statutory finding.  In
the case of Jones v. State, 204 Ark. 61, 161 S.W.2d 173 (1942), we
stated:  
If it be said that the imposition of the death penalty
shows what was intended, it may be answered that a
capital sentence may not be imposed by intendment .... 
However technical this may appear, it is nevertheless the
requirement of the law.  
...
We may not ignore the statute ... by saying that it is
technical, or highly technical, nor may we ignore it in
a particular case where we feel assured that the jury
found the accused guilty of murder in the first degree,
but did not reflect that finding in the verdict.
Id. at 64, 67, 161 S.W.2d  at 174, 175-76.
     In the case before us, the State urges that although the jury
did not make the written findings required by the statute, the
jurors indicated when they were polled that they had unanimously
agreed upon the death sentence, and that this made it unnecessary
to follow the statutory structure required by the legislature.  We
cannot agree with this argument.  However technical the
requirements of  5-4-603 may appear, it is nevertheless the
requirement of the law.
     Similarly, in Willett v. State, 322 Ark. 613, 911 S.W.2d 937
(1995), in response to the State's contention that the appellant
did not suffer any prejudice due to the fact that the jurors
appeared and orally confirmed their death-sentence verdicts in open
court, this court refused to apply a harmless-error analysis. 
While the court stated that it was inclined to conclude that the
error was harmless, the United States Supreme Court's rule that all
errors relating to mitigating circumstances are prejudicial
regardless of the standard prevented it from doing so.  Id. at 628,
911 S.W.2d  at 944-45 (citing Shipper v. South Carolina, 476 U.S. 1
(1986)).
     We have decided that the failure of the jury to unanimously
return a written finding that aggravating circumstances justify a
sentence of death beyond a reasonable doubt is an error requiring
reversal of the sentencing phase of the case imposing the death
penalty, and we remand to the trial court for a new sentencing
procedure.  Ark. Code Ann.  5-4-616.
     Appellant's remaining arguments regarding the sentencing phase
are likely to arise upon retrial for sentencing; therefore, we
address these points for guidance to the trial court.  Appellant
contends that the court erred in refusing to submit a modified
instruction form concerning mitigating circumstances during the
penalty phase.  The proposed modification added mental retardation
as a mitigating circumstance.  The court refused to allow the
instruction, noting that appellant could argue this mitigating
circumstance to the jury, and if it so found, the jury could add it
as a mitigating circumstance under "Other."  As discussed more
fully below, appellant did present evidence and argue this factor
to the jury.
     Appellant relies upon a line of United States Supreme Court
cases that hold that any death sentence resulting from a deliberate
exclusion of any mitigating circumstance is presumptively invalid. 
Penry v. Linaugh, 492 U.S. 302 (1989); Hitchcock v. Dugger, 481 U.S. 393 (1987); California v. Brown, 479 U.S. 538 (1987); Eddings
v. Oklahoma, 455 U.S. 104 (1982); Roberts v. Louisiana, 421 U.S. 633 (1977); Gregg v. Georgia, 428 U.S. 153 (1976).  We find no such
deliberate exclusion, because appellant was permitted to make his
argument to the jury.  We rejected an identical argument in
Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993), in which we
held that when the defendant is allowed to present the possible
mitigators and the jury is told it is not limited to the mitigators
listed on the form, it is not error to submit the standard form to
the jury in lieu of a form proposed by the defendant.  Id. at 38,
852 S.W.2d  at 779.
     As a final point for reversal, appellant urges that the death
sentences should be set aside because the jury ignored evidence of
mitigating circumstances, the mental retardation of the defendant. 
Appellant argues that his death sentences should be set aside
because the jurors failed to mark the instruction forms
appropriately.  In Form Two, the jury is required to mark under
subsection A that it unanimously found any of the six mitigating
circumstances.  Under subsection B, the jury was required to mark
whether some of the jurors believed any of those six factors
existed, and under subsection C, the jury was required to mark
whether it unanimously agreed that any of the same factors were not
present.  The format of this instruction is that the jury is
required to mark in each category whether each factor was
unanimously accepted or rejected or whether it was partially
accepted.  This was not done.  Appellant argues that the jury erred
because it was required to consider his mitigating proof of mental
retardation and should have marked the forms appropriately,
indicating whether that proof was either unanimously or partially
accepted or rejected.
     The State contends that this argument is not preserved for
review because the verdict forms were read aloud and the court
asked if there were any questions, but counsel responded, "No, 
Your Honor."  In short, the State submits that the issue is not
preserved for appeal because appellant never lodged an objection to
the verdict forms.  In Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978), the court held that from the date of that decision
onward, an assertion of error in the verdict form will not be
considered when the issue has not been raised to the trial court in
some manner.  On the merits, the State points out that the proof of
mental retardation was not absolute because appellant's report
noted that he was not impaired at the time of the offense.  The
report further opined that appellant was malingering.  Thus,
according to the State, there is no showing that the jury
arbitrarily disregarded anything.
     We have already expressed our decision that this case must be
reversed and remanded for a new sentencing phase because of the
jury's failure to make written findings supporting the imposition
of the death penalty.  As a result of that decision, it is
unnecessary for us to address the question whether appellant is
barred from raising the issue concerning incomplete jury forms
relating to mitigating factors in this appeal.  When the matter is
heard in the new sentencing phase, there will be an opportunity for
the appellant to timely express any objections to procedure or
incomplete forms.  We want to express our concern that appellant be
provided opportunity to understand the proceedings by means of
assistance of persons having competent skills in interpreting
language, and that the court make every effort to assure that
mitigating circumstances are properly presented to, and considered
by, the jury.
     In accordance with Ark. Sup. Ct. R. 4-3(h), we have examined
the record for all objections decided adversely to appellant, and
we find no additional error.  We affirm the capital murder
conviction, but we reverse the death sentence and remand for new
sentencing.
     Newbern, J., concurring.
     Arnold, C.J., and Glaze, J., concurring in part and dissenting in
part.
                David Newbern, Justice, concurs.
     The majority opinion is correct in every respect, and I join
in the opinion.  I write separately only to point out my concern
about the manner of Spanish-English translation displayed in the
record.  It is important that the testimony of a witness who does
not speak English be taken as closely as possible to the way in
which any other witness's testimony would be taken.  There should
be questions and answers to and from the witness, not to and from
the interpreter.  The person asking the question should ask it of
the witness.  The interpreter should do no more than translate the
question.  In translating the witness's answer, the interpreter
should do no more than say what was spoken by the witness but say
it in English; in other words, translate the testimony directly.
     In this case, the record shows there were instances when the
Court or other person asking questions of the witness would say
something like, "Ask him .....", the witness would speak, and then
the interpreter would say, "He says ...."  Obviously that turns the
interpreter into a witness rather than a translator.  An example of
this sort of thing appears in Szklaruk v. Szklaruk, 251 Ark. 599,
473 S.W.2d 599 (1971).  There, as here, no issue was made of the
matter, but the objectionable practice of conversing with the
interpreter, rather than conversing with the witness through the
interpreter, is displayed.
     In Kay v. State, 260 Ark. 681, 543 S.W.2d 479 (1976), we at
least suggested, if we did not make it clear, that the job of an
interpreter is simply to repeat the question asked of the witness
in the language understood by the witness, and then to repeat the
witness's answer in English.  The interpreter is not to make
"remarks."  
     Again, no issue has been raised in this case concerning the
interpreter and the practice followed.  From the record before us,
however, I have a concern whether Mr. Camargo's testimony was
accurately stimulated by the questions asked of him and accurately
recorded through the interpreter.  
     Another non-issue in this case I regard as one that could have
been serious is whether Mr. Camargo knew what other witnesses and
court personnel were saying to each other during the trial.  An
accused's right to presence at the trial is of little value if he
or she cannot understand the proceedings.    
     If a person with limited or nonexistent skills in the English
langage is to have a fair trial, or a fair resentencing procedure,
great care must be taken in the direct translation process.    

W. H. "Dub" Arnold, Chief Justice, concurs in part and dissents in
part.
     Because I would affirm both the conviction and sentence in
this case, I must respectfully dissent from the portion of the 
majority opinion that reverses Camargo's case for resentencing.
     During the penalty phase, after being instructed by the trial
court, the jury first considered, with respect to each victim, Form
One, which set forth two possible aggravating circumstances.  The
two aggravating circumstances listed were that Camargo had
previously committed a felony involving violence, and that, during
the commission of the murder, he knowingly created great risk of
death to a person other than the victim.  The jury unanimously
found that both of these aggravating circumstances existed.  The
jury then proceeded to Form Two, which required them to determine
whether mitigating circumstances were shown to exist.  The jury
unanimously found that the evidence showed the mitigating
circumstance that Camargo adjusted well to confinement.
     Next, the jury proceeded to Form Three, entitled
"Conclusions."  This is the form in dispute.  The form contains the
following three sections:
     (a) ( ) One or more aggravating circumstances did exist
     beyond a reasonable doubt, at the time of the commission
     of the capital murder.

     (b) (X) The aggravating circumstances outweigh beyond a
     reasonable doubt any mitigating circumstances found by
     the jury to exist.

     (c) ( ) The aggravating circumstances justify beyond a
     reasonable doubt a sentence of death.   
As indicated in the majority opinion, the jury only marked (b) on
Form Three.  The majority concludes, however, that because the jury
failed to mark (a) and (c) a reversal of the death sentence is
mandated due to a failure to comply with Ark. Code Ann.  5-4-603
(Repl. 1993).  I strongly disagree. 
     I do not dispute that, pursuant to  5-4-603, in order for the
death penalty to be imposed, the jury must unanimously return
written findings that (1) aggravating circumstances exist beyond a
reasonable doubt; (2) aggravating circumstances outweigh beyond a
reasonable doubt all mitigating circumstances found to exist; and
(3) aggravating justify a sentence of death beyond a reasonable
doubt.  Where I depart from the majority is that I do not agree
that the statute mandates that the jury record all these written
findings on Form Three.  From my reading of the statute, it only
requires that these written findings be made. 
     In this case, the jury made the first written finding on Form 
One, when it unanimously found that two aggravating circumstances
existed beyond a reasonable doubt at the time of the murder.  It is
undisputed that, on Form Two, the jury made the second written
finding that the aggravating circumstances outweighed beyond a
reasonable doubt all mitigating circumstances found to exist. 
Finally, on Form Four, the verdict form, the jury made the written
finding that, after careful deliberation, they determined that
Camargo shall be sentenced to:
     ( ) Life imprisonment without parole.
     (X) Death. 
The form instructed the jury that, if they returned a verdict of
death, each juror was required to sign the verdict.  The jury was
instructed that they were not to sign this form if they did not
unanimously agree that the aggravating cirumstances justified a
sentence of death beyond a reasonable doubt.  The signature of each
of the twelve jurors in the case appears on the form.  In my view,
by signing this form, the jury made the third required written
finding that the aggravating circumstances justified a sentence of
death beyond a reasonable doubt.    
     If there was any doubt regarding whether the jury unanimously
decided that Camargo should be put to death for the two murders, it
was resolved when the jury was individually polled as to whether
this was their verdict, and each answered in the affirmative. 
Indeed, the most troubling aspect of this case is that when the
trial court read Form Three and noted that the jury had marked (b)
only, then specifically asked the attorneys if there was any
question, both attorneys replied, "No, your honor."  The majority
employs the Wicks exception to conclude that no objection was
required.  I disagree that this exception applies in this case.  In
Wicks v. State, 270 Ark. 781, 606 S.W.2d 154 (1980), this court
discussed this exception as follows:
     In two cases in which the death penalty was imposed, we
     did not require an objection to the trial court's failure
     to bring to the jury's attention a matter essential to
     its consideration of the death penalty itself.  In the
     earlier case the court failed to require the jury to find
     the degree of the crime, as required by the statute, so
     that the jury might have imposed the death penalty for a
     homicide below first-degree murder. Wells v. State, 193
     Ark. 1092, 104 S.W.2d 451 (1937),  In the later case the
     trial court apparently failed to tell the jury that it
     had the option of imposing a life sentence.  Smith v.
     State, 205 Ark. 1075, 172 S.W.2d 248 (1943).

270 Ark. at 785-786.  In the present case, the failure of the jury
to check (a) and (c) on Form Three was brought to the attention of
the attorneys by the trial court  --  counsel for Camargo simply
waived any objection to the incomplete form.  This is not a case
where the jury failed to determine the degree of the crime, and
this is not a case where the jury was not informed that it had the
option of imposing a sentence of life imprisonment without parole. 
This was a case where each of the twelve jurors signed a verdict
form recommending that Camargo be sentenced to death, and where
each juror orally confirmed that this was his or her verdict.  
     The unfortunate practical implication of the majority's
decision today is that, when jury forms are left incomplete in the
future, a defendant similarly situated is encouraged to stay quiet,
wait for a reversal of his death sentence, and hope that, on
remand, the State will either offer a life sentence or that another
jury may show mercy.  Because I cannot ignore this jury's obvious
decision to recommend a death sentence for Camargo, I respectfully
dissent.
     Glaze, J., joins.