ELECTRONICALLY FILED

Arkansas Supreme Court

Stacey Pectol, Clerk of the Courts
2020-Apr-20 15:48:14
CR-20-269
13 Pages

IN THE SUPREME COURT OF ARKANSAS

STATE OF ARKANSAS PETITIONER

VS. CASE NO. _______________

MAURICIO ALEJANDRO TORRES RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

Comes now petitioner, the State of Arkansas, by and through counsel, Leslie

Rutledge, Attorney General, and Vada Berger, Senior Assistant Attorney General,

and, for its Petition for a Writ of Certiorari, states:

I.

Following this Court’s reversal of his convictions for capital murder and

first-degree battery and his sentence of death for systematically abusing and then

sodomizing his six-year-old son with a stick, Torres v. State, 2019 Ark. 101, at 1,

15, 571 S.W.3d 456, 458, 465; id., 2019 Ark. 101, at 18-19, 571 S.W.3d at 466-67

(Womack, J., dissenting), the State preceded to retry respondent Torres for his

crimes in the Benton County Circuit Court. (RT 13-14) At the conclusion of the

guilt phase, the jury unanimously found Torres guilty of the capital murder and

battery of his son, which the circuit court confirmed by polling of the jurors. (RT

6-9) The case then proceeded to the penalty phase. (RT 62-63) The second
penalty-phase witness was Torres’s adult stepson, who was shackled at the ankles

due to his current incarceration in the Arkansas Division of Correction. (RT 83-

86) When asked by the prosecutor whether Torres had sexually abused him, the

witness leapt out of the witness box and lunged toward Torres and his attorneys.

(RT 99, 130) The ensuing struggle resulted in a table’s being overturned, and it

took three court personnel to subdue the witness. (RP 17; RT 130)

After these events occurred in the presence of the jury, Torres’s counsel

moved for “a mistrial of this sentencing phase[ ]” and “of the sentencing

proceeding.” (RT 106, 113) Counsel specifically stated twice that he was “not

moving” for a mistrial “at guilt.” (RT 119-120) The State resisted the motion.

(RT 114-118, 124) Although Torres only had sought a mistrial with regard to the

penalty phase of the trial, the court sua sponte granted a mistrial as to both guilt

and sentencing on the ground that Ark. Code Ann. § 5-4-602(3)(A)(Supp. 2019)

requires the “same jury” to determine both guilt and punishment in a capital

proceeding. (RP 17-18; RT 135-136, 143) The State moved for reconsideration of

that decision, arguing that the statutory sentencing scheme did not prevent the

declaration of a mistrial limited to sentencing only and that Torres had abandoned

the right to be sentenced by the “same jury” when he moved for a mistrial only as

to sentencing. (RP 34-48) After Torres responded to the motion, the circuit court

denied it in an order entered on March 19, 2020. (RP 49-58, 63-69) This petition

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ensued.

II.

By concluding that Ark. Code Ann. § 5-4-602(3)(A) precluded it from

granting a mistrial limited to the penalty phase of a capital-murder trial, the circuit

court exceeded its jurisdiction and committed an error that is apparent on the face

of the record. A writ of certiorari is an extraordinary writ that is available when

the petitioning party has no other adequate remedy, by appeal or otherwise, and

when it is apparent on the face of the record that there has been a plain, manifest,

and clear abuse of discretion, there is a lack of jurisdiction, an act in excess of

jurisdiction on the record, or the proceedings are erroneous on the face of the

record. E.g., Zimmerman v. Cir. Ct. of Miller Cty., 2018 Ark. 265, at 2-3, 555

S.W.3d 406, 407-08. These principles apply in circumstances in which the circuit

court does not have the authority to issue a particular remedy. E.g., Kraemer v.

Patterson, 342 Ark. 481, 485, 29 S.W.3d 684, 686 (2000). In accordance with

these standards, a writ of certiorari lies here.

The State has no other adequate remedy. It has no right to pursue an

interlocutory appeal of the circuit court’s decision nullifying the jury’s guilty

verdicts and effectively granting a new trial as to the guilt phase. See, e.g.,

Arkansas Rule of Appellate Procedure 3(a) & (b) – Criminal (2019). It is seeking

to avoid a nullification of a jury’s verdicts of guilt which are wholly untainted by

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the events precipitating the penalty-phase mistrial. An appeal by the State

following the entry of a final order after a wholesale retrial – whether resulting in

an acquittal or a conviction – will not cure the nullification of the jury’s verdicts,

and, thus, certiorari lies in this “extraordinary situation[.]” Jordan v. Cir. Ct. of

Lee Cty., 366 Ark. 326, 332-33, 235 S.W.3d 487, 493 (2006).

III.

The circuit court exceeded its jurisdiction and committed an error on the

face of the record by concluding that § 5-4-602(3)(A) required it to grant a mistrial

as to the guilt phase when events warranting a mistrial occurred only in the penalty

phase. Arkansas Code Annotated § 5-4-602(3)(A) provides that

If the defendant is found guilty of capital murder, the same jury

shall sit again in order to:
(i) Hear additional evidence as provided subdivisions (4) and (5) of
this section; and
(ii) Determine the sentence in the manner provided by § 5-4-603.

The legislature originally adopted this provision in 1973 when it adopted

bifurcated trial proceedings for the consideration of aggravating and mitigating

circumstances at sentencing to prevent the possibility of the arbitrary imposition of

the death penalty. See, e.g., Heard v. State, 272 Ark. 140, 146, 612 S.W.2d 312,

316 (1981)(explaining purpose of bifurcation); see also Giles v. State, 261 Ark.

413, 426, 549 S.W.2d 479, 486 (1977)(noting original version of § 5-4-602(3)(A)

adopted in 1973), overruled on other grounds, Grillot v. State, 353 Ark. 294, 310,

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107 S.W.3d 136, 145 (2003). Among other things, the “same jury” provision

ordinarily serves to eliminate the need to conduct two separate trials in capital

cases, thus eliminating the time-consuming task of choosing two juries and the

repetitive presentation of evidence. See, e.g., Rector v. State, 280 Ark. 385, 395-

96, 659 S.W.2d 168, 173-74 (1983).

The “same jury” provision, however, is not absolute. Rather, it must be read

consistently with that provision’s undisputed purpose of avoiding unnecessary

duplication of proceedings. Indeed, underscoring that the “same jury” provision is

not absolute, separate juries are allowed to determine guilt and punishment in

capital cases when intervening events prevent the initial jury from making both of

those determinations. For instance, when a particular juror is no longer able to

deliberate in the punishment phase of a capital trial, Arkansas Rule of Criminal

Procedure 32.3(c)(1) & (2)(2019) authorizes an alternate juror to replace the

incapacitated juror, even though the replacement of a juror, as the Rule itself

recognizes, means the same jury is not determining punishment. The Rule thus

recognizes that there is no reason to set aside a valid and reliable verdict as to guilt

simply because not all of the same jurors can participate in the penalty phase.

Similarly, one of the statutes governing capital sentencing allows separate

juries to determine guilt and punishment due to intervening events despite the

“same jury” provision of Ark. Code Ann. § 5-4-602(3)(A). Arkansas Code

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Annotated § 5-4-616(a)(Repl. 2013) provides that, “[n]otwithstanding § 5-4-

602(3)[,]” the “same jury” need not determine guilt and innocence when this Court

finds reversible error with regard to the sentencing proceeding only. When that

occurs, the statute prohibits the reversal of the conviction for the capital felony and

authorizes the impaneling of a new jury for a sentencing proceeding only, in

recognition that an error in the sentencing proceeding does not impugn the validity

of the guilty verdict. Id., at § 5-4-616(a)(1)(B) & (C)(ii). Indeed, the Emergency

Clause in the legislation adopting Ark. Code Ann. § 5-4-616(a) recognized that “it

is a waste of judicial resources to require the retrying of an error-free trial if the

State wishes to seek to reimpose the death penalty; and this Act is immediately

necessary to rectify that problem.” Acts 1983, No. 546, § 3.

Just as the “same jury” need not determine both guilt and punishment when

a juror no longer is able to serve in the sentencing phase or when a sentence alone

is reversed, the “same jury” need not determine both guilt and punishment when a

mistrial occurs in the sentencing phase that has no conceivable effect on

preexisting verdicts of guilt. The fact that the capital-sentencing statute does not

explicitly provide that a different jury can determine punishment after a

sentencing-phase mistrial does not prevent empaneling a jury solely for sentencing.

In fact, this Court held in Buckley v. State, 349 Ark. 53, 63, 76 S.W.3d 825, 831

(2002), that Arkansas’s bifurcated sentencing statutes did not prohibit a new jury

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for sentencing only upon reversal of a sentence even though there was no statutory

language at the time authorizing sentencing on remand by a jury that had not

determined guilt. Because the statute authorized jury sentencing following a plea

of guilt, however, the Court held that it must allow sentencing after remand:

In such a situation, the jury empaneled for the purpose of sentencing

would not have heard the evidence relating to the guilt issue in the
first instance either, but it is still permitted to decide sentencing. Thus,
by analogy, if a jury can decide a sentence after a defendant has pled
guilty, but that jury has heard no evidence other than the fact that the
defendant had already been convicted, then a jury should be permitted
to decide a sentence in a case where a defendant’s conviction has been
affirmed, but only the sentence reversed. The question of guilt, as in a
guilty plea, has already been decided; it remains only for the jury to
determine a just sentence.

Id., 349 Ark. at 63, 76 S.W.3d at 83.

A similar analogy applies here and demonstrates that the circuit court

committed an error apparent on the face of the record when it concluded that Ark.

Code Ann. § 5-4-602(3) prevented it from granting a sentencing-phase-only

mistrial. Because Ark. Code Ann. § 5-4-616 (a)(1)(C)(ii) authorizes the

empaneling of a new jury solely to determine a sentence when a reversible error

occurs only at sentencing, then it must be the case that a new jury can be

empaneled solely to determine a sentence when guilt has been decided and a

mistrial is declared due to events occurring in the sentencing phase.

The analogy here is even more apt. This Court has observed that the guilt

and penalty phases of a criminal trial are effectively two trials. See, e.g., Hill v.
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State, 318 Ark. 408, 413, 887 S.W.2d 275, 277 (1994). By granting Torres a

mistrial in the guilt phase due to an error occurring solely in the penalty phase, the

trial court effectively granted him a new trial as to the guilt phase – a remedy that

this Court itself could not grant pursuant to Ark. Code Ann. § 5-4-616(a)(1)(B) had

it concluded that a mistrial-worthy event occurred in the sentencing phase. It

cannot be the law that Torres is entitled to greater relief and to the windfall of

having another jury determine his guilt due to the circuit court’s concluding in the

first instance, rather than this Court on appeal, that penalty-phase events warranted

a mistrial.

The fact that penal statutes are strictly construed, that § 5-4-602(3)(A) uses

the term “shall,” and that this is a death-penalty case do not dictate a contrary

result. And the circuit court was wrong to conclude otherwise. (RP 17-18, 66-69;

RT 135) Buckley was a criminal case, yet the Court still held that it was

permissible to empanel a jury solely for sentencing after reversal of a sentence

despite the absence of explicit statutory language authorizing it. See also

Whiteside v. State, 2013 Ark. 176, at 7-8, 426 S.W.3d 917, 921 (noting that, in

Buckley, Court refused to adopt “strained” reading of statute that would have

“prohibit[ed] all remands for resentencing[ ]”). Moreover, even penal statutes are

not construed to defeat the intent of the legislature, and statutes are construed by

placing them alongside other relevant statutes, with meaning and effect derived

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from the whole. E.g., State v. Colvin, 2013 Ark. 203, at 7, 427 S.W.3d 635, 640.

While “shall” in a statute ordinarily means mandatory compliance, the term will

not be interpreted in a manner that would lead to an absurdity. E.g., Benca v.

Martin, 2016 Ark. 359, at 7-8, 500 S.W.3d 742, 748.

By adopting Ark. Code Ann. § 5-4-616(a)(1)(B) and (C)(ii), the legislature

clearly expressed its intent that an error in the sentencing phase of a capital trial

does not require a conviction to be vacated and that a new jury can be empaneled

for error in the sentencing phase notwithstanding Ark. Code Ann. § 5-4-602(3)(A).

And, in all three provisions, the legislature expressed its intent to eliminate

unnecessarily repetitive proceedings, while at the same time promoting reliability

and consistency in the administration of the death penalty. That intent is thwarted

by the granting of a mistrial as to the guilt of a phase of a trial, whose validity is

not remotely called into question by events occurring in its penalty phase. To hold

that the use of the “shall” in Ark. Code Ann. § 5-4-602(3)(A) circumvents all of

these considerations would lead to the absurd result of what one court has

characterized as “only serv[ing] to grant the defendant a gratuitous second chance

at an acquittal.” Ex parte Pete, 517 S.W.3d 825, 831 (Tex. Crim. App. 2017); see

also State v. Zeimer, 10 Utah.2d 45, 48, 347 P.2d 1111, 1113-14 (1960)(holding

that mistrial in second phase of bifurcated trial did not require both phases to be

retried, even though statute provided that both “shall” be tried by “same jury”).

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 Finally, whatever heightened standards may be in place in death-penalty

cases, those standards do not require the same jury to determine both guilt and

innocence in the abstract. They do not require the interpretation of capital-

sentencing statutes differently than other statutes to reach absurd results. See, e.g.,

Cox v. State, 313 Ark. 184, 197, 853 S.W.3d 266, 272-73 (1993)(refusing to

interpret statutory aggravator in manner that would lead to absurd result contrary to

legislative intent); Fairchild v. State, 286 Ark. 191, 192, 690 S.W.2d 355, 356

(1985)(per curiam)(refusing to read death-penalty statute literally when that

reading would contravene intent of legislature). And, those standards do not

require conferring on Torres the undeserved benefit of, yet again, being cloaked

with the presumption of innocence for events occurring in the sentencing phase of

his trial. Torres had the retrial of his guilt to which he was entitled. At this

juncture, nothing in the law should require another guilt-phase trial at which his

victim’s sister – who was nine years old at the time of the first trial – must testify a

third time about his unspeakable acts. Torres, 2019 Ark. 101, at 19, 571 S.W.3d at

467 (Womack, J., dissenting). The circuit court exceeded its jurisdiction and

committed an error that is apparent on the face of the record by granting a guilt-

phase mistrial in this case. A writ of certiorari should issue.

IV.

In the alternative, even if § 5-4-602(3)(A) as a general matter precludes the

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granting of a mistrial limited to the penalty phase of a capital-murder trial, the

circuit court nonetheless exceeded its jurisdiction and committed an error on the

face of the record. (RP 17-18, 65-69) Although Torres made clear below that he

was not waiving his right to appeal his guilt determination and that he was “fine”

with the circuit court’s subsequent decision to grant a mistrial as to both the guilt

and penalty phases, his motion for a mistrial was limited to the penalty phase. (RT

106-113, 119-120, 137, 147-149) The case had proceeded to a verdict in the guilt

phase, and the events that precipitated the granting of the mistrial did not call the

validity of those guilt-phase verdicts into question. By moving for a mistrial with

respect to the sentencing phase only, Torres forfeited any reliance on the statute

providing that the “same jury” determine both guilt and punishment, just as a

defendant who has moved for a mistrial cannot later complain of being deprived of

the Double Jeopardy Clause’s “valued right to have his trial completed by a

particular tribunal.” Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982)(citation and

quotations omitted). His right to appeal the determination of his guilt upon his

sentencing, which concerned him below, remains undisturbed.

When interpreting similar “same jury” language in a statute, the Court of

Criminal Appeals of Texas – Texas’s court of last resort for criminal cases – held

that a defendant who had moved for a mistrial limited to the punishment phase of

his trial was not entitled to have the “same jury” subsequently empaneled to sit at

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both the guilt and penalty phases of his trial. Pete, 517 S.W.3d at 831-34. The

Court held that, by moving for a mistrial as to the punishment phase only, the

defendant either forfeited or was estopped (not that he had waived reliance on the

statute) from claiming that the granting of the mistrial limited to punishment

violated the “same jury” statutory provision. Id., 517 S.W.3d at 832-34. So, too,

here, when Torres moved for a mistrial limited to the punishment phase of his trial,

he forfeited any reliance on the statute providing that the same jury determine both

his guilt and punishment, and the circuit court committed an act in excess of

jurisdiction and erroneous on the face of the record by concluding to the contrary.

Thus, a writ of certiorari should issue.

WHEREFORE, the State respectfully requests the Court to issue a writ of

certiorari to the circuit court below, with instructions that it conduct a sentencing

proceeding only, leaving the jury’s guilty verdicts intact.

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 Respectfully submitted,

LESLIE RUTLEDGE
Attorney General

BY: /s/Vada Berger

VADA BERGER
Arkansas Bar No. 93050
Senior Assistant Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
(501) 682-1052 [phone]
(501) 682-2083 [fax]
vada.berger@arkansasag.gov

ATTORNEYS FOR PETITIONER

CERTIFICATE OF SERVICE

I, Vada Berger, certify that, on April 20, 2020, I electronically filed the
foregoing document with the Clerk of the Court using the eFlex system, which is
deemed service on the attorneys for Torres:

Jeff Rosenzweig
William O. James, Jr.
George (Birc) Morledge

I further certify that on April 20, 2020, I emailed the foregoing document to
The Hon. Brad Karren, Circuit Judge.

/s/Vada Berger
VADA BERGER

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