Full opinion text
MEMORANDUM OPINION EISELE, Chief Judge. On October 30, 1979, petitioner was sentenced to death by electrocution for capital felony murder, and life imprisonment for aggravated robbery. The conviction and death sentence for capital murder were affirmed by the Arkansas Supreme Court, but the aggravated robbery conviction and sentence were vacated on double jeopardy grounds. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). Certiorari was denied by the United States Supreme Court. Petitioner then sought permission to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure. Permission was denied by the Arkansas Supreme Court and an execution date was set for June 4, 1982. The Arkansas Supreme Court denied petitioner’s request for a stay of execution. On June 1, 1982, this Court granted petitioner a stay of execution and petitioner’s first petition for writ of habeas corpus was filed. Petitioner subsequently filed an amended petition. The State of Arkansas responded. An evidentiary hearing was held to resolve the factual issues. The facts of the case were stated by the Arkansas Supreme Court, 274 Ark. at 128-29, 623 S.W.2d 180, as follows: The victim, Mary Lou York, was murdered in York’s Grocery Store at Hamburg on June 1,1979. She died from loss of blood as a result of two stab wounds in her neck. The evidence of guilt in this case is overwhelming. Patti Franklin saw her relative Singleton enter York’s Grocery at approximately 7:30 p.m. on the day of the crime. Shortly after he entered Patti heard Mrs. York scream, “Patti go get help. Charles Singleton is killing me.” Patti then ran for help. Another witness, Lenora Howard, observed Singleton exit the store and shortly thereafter witnessed Mrs. York, who was “crying and had blood on her,” come to the front door. Police Officer Strother was the first to arrive at the scene and found Mrs. York lying in a pool of blood in the rear of the store. The officer testified Mrs. York told him that Charles Singleton “came in the store, said this is a robbery, grabbed her around the neck, and went to stabbing her.” She then told Officer Strother that “there’s no way I can be all right, you know I’m not going to make it. I’ve lost too much blood.” Mrs. York was taken to the hospital in an ambulance and was attended by her personal physician, Dr. J.D. Rankin. While enroute to the hospital, she told Dr. Rankin several times that she was dying and that Singleton did it. Mrs. York died before reaching the emergency room of the hospital. Officer Strother also testified that during examination of the premises, he found a money bag on the floor near the cash register which was empty, except for about $2.00 in change. He also stated that the cash register had only a small amount of change in it. Petitioner’s grounds for the writ are briefly summarized as follows: 1. Petitioner was denied a jury panel of a cross-section of the community because the jury panel was selected in a racially discriminatory manner. 2. Petitioner was denied a jury of a cross-section of the community because of the manner in which potential jurors were summoned. 3. The jury was “death qualified.” 4. The trial court failed to grant petitioner’s motion for a change of venue. 5. Petitioner was denied effective assistance of counsel because his counsel: a. Failed to challenge certain veniremen for cause; b. Failed to conduct an adequate voir dire re challenges for cause; c. Wrongly assented to the exclusion of a potential juror under Witherspoon who should not have been excluded; d. Failed to make an adequate appellate record for review of voir dire; e. Did not rehabilitate, for Witherspoon purposes, potential jurors excluded under that case. 6. Petitioner’s rights at the guilt phase of trial were violated by: a. The proposition of inconsistent defenses; b. Failure to seek additional psychiatric examination; c. The admission of purported dying declarations of the victim; d. Admission of certain photographs of the deceased. 7. Petitioner’s arrest and the introduction of certain evidence seized from him violated his Fourth and Fourteenth Amendment Rights. 8. The evidence adduced at trial was insufficient to support a conviction. 9. The Arkansas statutory scheme is void for vagueness and violative of the Constitution because of the overlapping definitions of capital and first degree murder. 10. The Arkansas statutory scheme is impermissibly vague in its element of “extreme indifference to the value of human life.” 11. Petitioner's constitutional rights were violated at the penalty phase of the trial by: a. Counsel’s failure to prepare or present evidence in mitigation; b. Counsel’s making an inadequate and improper closing argument; c. The jury’s ignoring evidence of mitigating circumstances; d. The vagueness of the definition of the term “pecuniary gain.” e. The failure to comply with procedural requisites. 12. The death penalty in this case violates the Constitution in that: a. It was imposed despite the absence of valid and non-vague aggravating circumstances in that only one aggravating circumstance was argued by the prosecution; b. The sentence was not in proportion to other death sentences. More aggravating circumstances were involved in other cases where death sentences were not given; 13. The death penalty itself is unconstitutional. 14. Petitioner is not mentally competent to be executed and to execute him would violate the Constitution under these circumstances. Most of the questions presented by Mr. Singleton’s petition for habeas corpus are questions of law based upon an established record. The hearing was devoted principally to issues relating to Mr. Wellenberger’s effectiveness as Mr. Singleton’s attorney and with respect to the manner in which the jurors were originally placed on the list of 800 and, later, chosen to serve on the Singleton panel. Apparently, Mr. Singleton is not seriously challenging Mr. Wellenberger’s effectiveness during the actual trial of his guilt or innocence. He does, however, raise questions about his effectiveness in challenging the jury selection system, in voir diring the jury, and in the handling of the penalty phase of the trial. The standard governing the Sixth Amendment right to effective assistance of counsel was recently articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674 (1984), in which the United States Supreme Court held: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence re-suited from a breakdown in the adversary process that renders the result unreliable. ****** When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. More specific guidelines are not appropriate. The Sixth Amendment refers simply to counsel, not specifying particular requirements of effective assistance. It relies instead on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. See Michel v. New York, 350 U.S. 91, 100-101 [76 S.Ct. 158, 163-164,100 L.Ed. 83] (1955). The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. With respect to the element of “prejudice,” the Court had the following to say, 104 S.Ct. 2067-2068: An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 667-668, 66 L.Ed.2d 564 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. ****** Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U.S. [97], at 104, 112-113, 96 S.Ct. [2392], at 2397, 2401-2402 [49 L.Ed.2d 342 (1976)], and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bemal, 458 U.S. [858], at 872-874, 102 S.Ct. [3440], at 3449-3450 [73 L.Ed.2d 1193 (1982)]. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. In Kellogg v. Scurr, 741 F.2d 1099 (1984), the Eighth Circuit had the following to say about claims of ineffective assistance of counsel: To succeed on a sixth amendment ineffective assistance of counsel claim, a defendant must show that his or her attorney failed to provide reasonably effective assistance which resulted in prejudice to the defense. Strickland v. Washington [466 U.S. 668], 104 S.Ct. 2052, 2064 [80 L.Ed.2d 674] (1984). Reasonably effective assistance may be defined as “the skill and diligence that a reasonably competent attorney would exercise under similar circumstances * '* *.” Thomas v. Lockhart, 738 F.2d 304, 307 op. at 4 (8th Cir. July 5, 1984). Because “[t]here are countless ways to provide effective assistance in any given case,” Strickland, 104 S.Ct. at 2066, and to offset the “distorting effects of hindsight,” id. at 2065, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” id. at 2066. See Wallace v. Lock-hart, 701 F.2d 719, 726 (8th Cir.), cert, denied, [464 U.S. 934], 104 S.Ct. 340 [78 L.Ed.2d 308] (1983); Comer v. Parratt, 674 F.2d 734, 736 (8th Cir.), cert, denied, 459 U.S. 856 [103 S.Ct. 125, 74 L.Ed.2d 108] (1982). To establish that an attorney’s inadequacy was also prejudicial, a defendant must show that there exists a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 104 S.Ct. at 2068. An ineffective assistance of counsel claim presents a mixed question of law and fact. Eldridge v. Adkins, 665 F.2d 228, 236 n. 5 (8th Cir.1981), cert, denied, 456 U.S. 910 [102 S.Ct. 1760, 72 L.Ed.2d 168] (1982). Therefore, the presumption of correctness accorded the factual determinations of the state court under 28 U.S.C. § 2254(d), and those of the district court under the clearly erroneous standard of Fed.R.Civ.P. 52(a), applies only to the historical facts underlying the attorney’s performance but not to the ultimate conclusion as to whether or not effective assistance has been rendered. Thomas, at 307 n. 3; Strickland, 104 S.Ct. at 2070. Cf Sumner v. Mata, 455 U.S. 591, 597 [102 S.Ct. 1303, 1306, 71 L.Ed.2d 480] (1982). ****** We recognize that while no single error of an attorney may violate the sixth amendment, multiple errors viewed cumulatively may be constitutionally infirm. Harris [v. Housewright ], 697 F.2d [202] at 206 [8th Cir.1982]. The record makes it clear that there was virtually no penalty phase trial. The question is: who was responsible for the failure to present evidence relating to mitigating factors at the penalty phase trial? The Court credits the testimony of Mr. Wellenberger that he was concerned with and worked on the penalty phase from the time of his first conference with Mr. Singleton on June 14. He began preparation for that phase of the trial on June 14. He explained the penalty phase to Mr. Singleton long before the trial and also at the trial. He requested Mr. Singleton to provide him with a personal history and the names of persons who could provide mitigating evidence. And the Court accepts Mr. Wellenberger’s testimony that he in fact subpoenaed a witness to testify at the penalty phase and had also planned to use Singleton and/or his mother. The Court is further convinced, and so finds, that Mr. Singleton alone made the decision not to put on any evidence even though this was against the direct and specific advice of Mr. Wellenberger. And Mr. Singleton was adamant in regard to this decision. Mr. Wellenberger suggested that if Mr. Singleton chose not to testify he should nevertheless permit Mr. Wellenberger to put on a witness concerning Singleton’s consumption of alcohol and marijuana and to try to get the Court to admit his handwritten personal history or, in the alternative, to call his mother for that purpose. The Court also accepts Mr. Wellenber-ger’s testimony that his client admitted that he killed Mary Lou York and that Respondent’s Exh. 1 is Mr. Singleton’s statement of the true facts made to his attorney and not — as stated by Mr. Singleton — simply a statement of what he “told” the police. Such an admission to one’s lawyer is an important circumstance which affects strategy decisions. The penalty phase was clearly deficient so the Court’s decision turns upon the question of law: does the defendant or his attorney have the right to decide if evidence of mitigating circumstances should be introduced at the penalty phase? The Court is firmly convinced that Mr. Wellen-berger would have put on such evidence if he had believed that the decision was his to make. However, he was convinced that under the law his client had the right and the authority to make that decision and therefore, after protest, accepted his decision. Before discussing this issue, it is important to note the charges against Mr. Singleton, the Arkansas statutory basis therefor, and the Arkansas statutory procedures governing the trial thereof. Mr. Singleton was charged by the Prosecuting Attorney in an Information filed on the 4th of June, 1979. Omitting the formal portions thereof it accuses: [T]he defendant Charles Lavern Singleton of the crime of aggravated robbery, a Class A Felony committed as follows, to-wit: The said defendant on the 1st day of June, 1979, in Ashley County, Arkansas, did unlawfully, commit aggravated robbery when he entered York’s Grocery in Hamburg, Ashley County, Arkansas, with the purpose of committing a theft armed with a deadly weapon, and in the commission of said theft did inflict death on the proprietor of said store, Mary Lou Youk, by stabbing her in the throat. Aggravated robbery is a Class A. Felony. Thereafter, apparently later on the same day, the prosecutor filed a capital murder information in which he accused: [T]he defendant CHARLES LAYERN SINGLETON of the crime of CAPITAL MURDER, A CLASS A FELONY committed as follows, to-wit: The said defendant on the 1st day of JUNE, 1979, in Ashley County, Arkansas, did unlawfully, commit capital murder when acting alone or with one or more other persons, he did rob or attempt to rob York’s Grocery Store in Hamburg, Ashley County, Arkansas; and in the course of and in furtherance of the said felony, he did cause the death of May Lou York by stabbing her in the throat, under circumstances manifesting extreme indifference to the value of human life. Capital murder is a Class A Felony. This latter charge was based upon Ark. Stat.Ann. § 41-1501(l)(a) which states in pertinent part: A person commits capital murder if: (a) acting alone or with one or more other persons, he commits or attempts to commit ... robbery, ..., and in the course of and in furtherance of the felony, ..., he ... causes the death of any person under circumstances manifesting extreme indifference to the value of human life____ The trial of persons charged of capital murder is governed by the procedure set out in Ark.Stat.Ann. § 41-1301 (1947) in pertinent part as follows: The following procedures shall govern trials of persons charged with capital murder: (1) The jury shall first hear all evidence relevant to the charge or charges and shall then retire to reach a verdict of guilt or innocence. * * * * * * (3) If the defendant is found guilty of capital murder, the same jury shall sit again in order to hear additional evidence as provided by subsection (4) hereof, and to determine sentence in the manner provided by section 1302 [§ 41-1302]; except that, if the state waives the death penalty, stipulates that no aggravating circumstance exists, or stipulates that mitigating circumstances outweigh aggravating circumstances, no such hearing shall be required, and the trial court shall sentence the defendant to life imprisonment without parole. (4) In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in section 1303 [§ 41-1303] or any mitigating circumstances. Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters; but the admissibility of evidence relevant to the aggravating circumstances set forth in section 1303 [§ 41-1303] shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant or his counsel shall be permitted to present argument respecting sentencing. [Acts 1975, No. 280, § 1301, p. 500.] The findings that are required to support a sentence of death are set forth in section 41-1302, Ark.Stat.Ann. (1947) as follows: (1) The jury shall impose a sentence of death if it unanimously returns written findings that: (a) aggravating circumstances exist beyond a reasonable doubt; and (b) aggravating circumstances outweight [outweigh] beyond a reasonable doubt all mitigating circumstances found to exist; and (c) aggravating circumstances justify a sentence of death beyond a reasonable doubt. (2) The jury shall impose a sentence of life imprisonment without parole if it finds that: (a) aggravating circumstances do not exist beyond a reasonable doubt; or (b) aggravating circumstances do not outweight [outweigh] beyond á reasonable doubt all mitigating circumstances found to exist; or (c) aggravating circumstances do not justify a sentence of death beyond a reasonable doubt. (3) If the jury does not make all findings required by subsection (1), the court shall impose a sentence of life imprisonment without parole. [Acts 1975, No. 280, § 1302, p. 500; 1977, No. 474 § 11, p — .] “Aggravating circumstances” are identified and limited by section 41-1303 of Ark. Stat.Ann. (1947). Aggravating circumstances shall be limited to the following: (1) the capital murder was committed by a person imprisoned as a result of a felony conviction; (2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction; (3) the person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another victim; (4) the person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim; (5) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody; (6) the capital murder was committed for pecuniary gain; or (7) the capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political functions. Acts 1975, No. 280 § 1303, p. 500; 1977 No. 474 § 12, p. — .] (8) the capital murder was committed in an especially heinous, atrocious or cruel manner. [Acts 1975, No. 280, § 1303, p. 500; 1977, No. 474, § 12, p. 1127; 1985, No. 833, § 1, p.-.] Certain “mitigating circumstances” are identified in section 41-1304, but that section does not restrict such mitigating circumstances to those enumerated therein. Section 41-1304 states: Mitigating circumstances shall include, but are not limited to the following: (1) the capital murder was committed while the defendant was under extreme mental or emotional disturbance; (2) the capital murder was committed while the defendant was acting under unusual pressures or influences or under the domination of another person; (3) the capital murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse; (4) the youth of the defendant at the time of the commission of the capital murder; (5) the capital murder was committed by another person and the defendant was an accomplice and his participation relatively minor; (6) the defendant has no significant history of prior criminal activity. [Acts 1975, No. 280, § 1304, p. 500.] The legislative intent pertaining to the enactment of the above statutes, 41-1301— 41-1307, is set forth in section 41-1308 which provides in part as follows: It is the intention of the General Assembly of the State of Arkansas, in enacting sections 1301-1307 [§§ 41-1301 — 41-1307] of Chapter 13 of the Arkansas Criminal Code 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. Section 41-1351 makes it clear that there are only two possible penalties for a person convicted of a capital offense: death or life imprisonment without parole. The case went to trial on both the Infor-mations quoted above, i.e., on the charges of aggravated robbery and also capital murder. It will be recalled that, although Mr. Singleton was convicted on both charges, the Supreme Court of Arkansas later set aside his conviction for aggravated robbery on double jeopardy grounds. The trial court gave the following instructions with respect to the offense of capital murder: Charles Lavem Singleton is charged with the offense of capital murder. To sustain this charge, the State must prove the following things beyond a reasonable doubt: First: That Charles Lavem Singleton committed or attempted to commit the crime of robbery; and Second: That in the course of and in furtherance of that crime, Charles La-vem Singleton caused the death of Mary Lou York under circumstances manifesting an extreme indifference to the value of human life. As a part of the charge of capital murder, the State contends that the death of Mary Lou York occurred during the commission or attempted commission of robbery by Charles Lavem Singleton, or in immediate flight therefrom. To prove robbery, the State must prove beyond a reasonable doubt: That, with the purpose of committing a theft, or resisting apprehension immediately thereafter, Charles Lavem Singleton employed physical force upon another. If the crime of robbery is not proved to have been committed or attempted by Charles Lavem Singleton, he is not guilty of capital murder. ****** In order to find that Charles Lavem Singleton is guilty of capital murder, you must find that he had the . purpose to commit robbery and that he formed that intention before committing the homicide. It is not necessary that this state of mind to commit robbery or aggravated robbery existed for any particular length of time, but it is necessary that it was formed before the homicide act was committed. It is the existence of this state of mind to commit robbery which distinguishes capital murder from other homicides. ****** When a death occurs during the commission or attempted commission of another crime or in immediate flight therefrom, capital murder is proved only if that other crime constituted robbery and all other elements of capital murder are proved. After the arguments of the attorneys and an explanation of the verdict forms, the jury retired and, after deliberating, returned with their verdicts. They found Mr. Singleton guilty of aggravated robbery and on that charge, sentenced him to both a term of life imprisonment and a fine of $15,000. They also found him guilty of capital felony murder. Thereupon, Mr. Wellenberger, Mr. Singleton’s attorney, requested a short recess before proceeding to the penalty phase of the trial. This was opposed by the prosecutor. The court then decided to allow the defendant “about five minutes recess.” Shortly, Mr. Wellenber-ger announced that the defendant was ready to proceed. The following then occurred: THE COURT: Very well. Proceed, Mr. Gibson. MR. GIBSON: Does the Court feel it should do the instructions at this time or are you asking the parties if they want to put in any additional evidence? THE COURT: I think you should put on any additional— MR. GIBSON: The State has no additional evidence, Your Honor. MR. WELLENBERGER: The Defense has no additional evidence, Your Honor. THE COURT: Ladies and gentlemen, members of the jury, you have found Charles Lavem Singleton guilty of capital murder. ****** THE COURT: ... After hearing arguments of counsel, you will again retire to deliberate and decide whether he is to be sentenced to death by electrocution or to life imprisonment without parole. In determining which sentence shall be imposed, you may be required to make specific written findings as to the existence or absence of aggravating or mitigating circumstances. Appropriate forms will be provided for you and I’m going to instruct you on the procedures that you must follow. The court went on to explain “aggravating circumstances” and “mitigating circumstances,” and then stated: In no event will you return a verdict imposing the death penally unless you unanimously make three particular written findings of Form Three. These are: First: That one or more aggravating circumstances existed beyond a reasonable doubt. Second: That such aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found to exist; and Third: That the aggravating circumstances justify beyond a reasonable doubt the sentence of death. If you make those findings, you will impose the death penalty. Otherwise, you will sentence the defendant to life imprisonment without parole. After you have made your determinations on Forms One and Two and have reflected your conclusions on Form Three, then you must check the appropriate verdict on Form Four. Each of you must sign the verdict form. Thereupon the prosecutor, Mr. Gibson, asked if he could argue the “circumstances.” Mr. Wellenberger objected, stating that “there had been no evidence introduced concerning these circumstances.” After further discussion of the verdict forms, the court permitted argument over Mr. Wellenberger's objection. After reviewing the law with respect to “aggravating circumstances,” Mr. Gibson stated: I submit to you only one existed and that is the murder was committed for pecuniary gain, that the Defendant at the time of the commission of the murder — although it wasn’t, we don’t have any evidence as to the amount. — the evidence is beyond a doubt that he was in the commission of a robbery, that he intended to steal money. So that aggravating circumstance presents itself. And I’m sure you have already found that to have existed. You will now be asked to retire to make that specific finding as to whether or not you have found that. And if you cannot find that, then you cannot impose the death penalty. Form Two has a list of six possible mitigating circumstances, and a place for you to specify any others that you may find existed. I submit to you there has been no evidence of any mitigating circumstances, none whatsoever in this case. * * * * * * Now, a lot of the people feel that when a person puts another person to death that he should suffer the same punishment. The State of Arkansas provides death by electrocution. And Mary Lou York suffered a worse death at the hands of this defendant. The entire argument of the defendant’s attorney, Mr. Wellenberger, was the following: MR. WELLENBERGER: Ladies and gentlemen, it’s been a long trial. You’ve sat and listened to the evidence and you’ve made your decision. I don’t believe any one of you would like to take a man’s life and I think you will do what’s proper. I know you are people of conviction, and if it is required then that’s what you’ll do. If you don’t think it’s required, you will not. I know that none of you will make this decision lightly. I have absolutely nothing to say to you in regard to it. I do not envy you having to make the decision. And I trust that you would deliberate now and reach what you feel is proper in this case. After the jury retired to commence its deliberations upon the penalty, the following occurred: MR. WELLENBERGER: At the conclusion of the guilt phase of the trial and after the jury had rendered its verdict, I asked the Court for a short recess so I could confer with my client concerning the evidence that he wanted introduced into the record concerning mitigating circumstances. I have available a witness that would testify as to the fact that he was under the influence of alcohol and drugs which is a mitigating circumstance. I advised him of this but he said he did not want to enter any evidence whatsoever concerning anything; that he wanted to allow them to just go on and do what they wanted to do. Over my objections and against my advice, he insisted that I maintain that position and that I say nothing further. After deliberating, the jury returned and sentenced Mr. Singleton to death by electrocution. The verdict forms revealed that the jury found one aggravating circumstance beyond a reasonable doubt, to wit: “The capital murder was committed for pecuniary gain.” The jury also found “there was no evidence of any mitigating circumstances.” The Court has carefully reviewed all of the arguments and points raised by the petitioner which challenge his conviction for the crime of capital murder and concludes that none of them have merit. The Court was concerned during the hearing about the jury empaneling and selection procedures but the evidence presented by the state has removed any effective challenge based upon that ground. There are three issues relating to the penalty phase of the trial which deserve discussion, one of which requires the court to set aside the death sentence imposed upon the petitioner. The other two involve questions of statutory construction which have not yet been dealt with by the courts of the state of Arkansas. CLIENT OR ATTORNEY: WHO HAS THE RIGHT TO DECIDE IF EVIDENCE OF MITIGATING CIRCUMSTANCES, WHERE AVAILABLE, WILL BE INTRODUCED PURSUANT TO SECTION 14-1301, et seq.? As the Court pointed out in its discussion above, Mr. Wellenberger, the attorney for the petitioner, did not put on evidence of mitigating circumstances, although he had some such evidence, because he was instructed not to do so by his client, Mr. Singleton. Mr. Wellinberger was convinced that, under the law, his client had the right to make that decision. The Court will discuss the law which pertains to that issue. The State contends that the issue should be controlled by those cases dealing with the right of a person, previously convicted, to terminate further appeals or habeas petitions. One of the leading cases dealing with that issue is Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). The facts were that on November 14, 1976, Gary Mark Gilmore was convicted of murder and sentenced to death after a jury trial in a Utah court. On December 3, 1976, the Supreme Court of the United States entered a stay of execution pending the filing of a response by the State of Utah together with the transcripts of various hearings. On December 13, 1976, the Supreme Court entered its Order and Opinion upon the issues raised. The Order stated, inter alia: After carefully examining the materials submitted by the State of Utah, the Court is convinced that Gary Mark Gilmore made a knowing and intelligent waiver of any and all federal rights he might have asserted after the Utah trial court’s sentence was imposed, and, specifically, that the State’s determinations of his competence knowingly and intelligently to waive any and all such rights were firmly grounded. Accordingly, the stay of execution granted on December 3, 1976, is hereby terminated. The Supreme Court divided 5 to 4 in its decision to terminate the stay of execution. The background is interesting. On December 2,1976, Bessie Gilmore, the mother of Gary Mark Gilmore, filed the application for a stay of execution as her son’s “next friend.” On December 8,1976, Gary Mark Gilmore filed a response challenging the standing of Bessie Gilmore to initiate any proceedings on his behalf. Chief Justice Burger and Justice Powell were of the opinion that, assuming the Court would otherwise have jurisdiction with respect to a “next friend” concept, that “jurisdiction would arise only if it were demonstrated that Gary Mark Gilmore is unable to seek relief in his on behalf.” They went on to state that in view of Gary Mark Gilmore’s own response of December 8, 1976, the “next friend” concept would be inapplicable to the case: Since Gary Mark Gilmore has now filed a response and appeared in his own behalf, through his retained attorneys, any basis for the standing of Bessie Gilmore to seek relief in his behalf is necessarily eliminated. The only possible exception to this conclusion would be if the record suggested, despite the representations of Gary Mark Gilmore’s attorneys, that he was incompetent to waive his right of appeal under state law and was at the present time incompetent to assert rights or to challenge Bessie Gilmore’s standing to assert rights in his behalf as “next friend.” After examining the transcripts and reports of the state’s proceedings and Gary Mark Gilmore’s response of December 8, 1976, Justices Burger and Powell were convinced that Gary Mark Gilmore, knowingly and intelligently, with full knowledge of his rights to seek appeal to the state of Utah, had waived that right. Those justices further agreed that the state’s determinations of Gilmore’s competence to waive his rights knowingly and intelligently “were firmly grounded.” With this record, the Court went on to state: It is plain that the Court is without jurisdiction to entertain the “next friend” application filed by Bessie Gilmore. This Court has jurisdiction pursuant to Act III of the Constitution only over “cases and controversies,” and we can issue stays only in aid of our jurisdiction. 28 U.S.C. §§ 1651, 2101(f). There is no dispute, presently before us, between Gary Mark Gilmore and the State of Utah, and the application of Bessie Gilmore manifestly fails to meet the statutory requirements to invoke this Court’s power to review the action of the Supreme Court of Utah. No authority to the contrary has been brought to our attention, and nothing suggested in dissent bears on the threshold question of jurisdiction. Justices Stevens and Rehnquist concurred that Gilmore was competent to waive his right to an appeal but they went on to emphasize also that “his access to the courts is entirely unimpeded and therefore a third party has no standing to litigate an Eighth Amendment claim — or indeed any other claim — on his behalf.” They concluded that, “without a proper litigant before it, this Court is without power to stay the execution.” A similar problem was dealt with by the Ninth Circuit in Lenhard, et al. v. Wolff, 603 F.2d 91 (1979), where an appeal was taken from the district court’s denial of a writ of habeas corpus and of an emergency application for stay of execution. Mr. Len-hard and Mr. Fransen, deputy public defenders of Clark County, Nevada, attempting to appeal as next friend acting on behalf of Jessie Walter Bishop, who had been sentenced to death, filed the application for stay and the appeal. It appeared that Bishop pled guilty to nine felony charges including murder and was sentenced to death on February 10, 1978. During the course of the arraignment, Bishop moved to dismiss his court-appointed counsel, the public defenders, making known that he desired to plead guilty to all of the charges. The court ordered a psychiatric examination of his competence to do so. He was examined by three psychiatrists and, based upon their conclusions, was found to be competent to enter a guilty plea, to discharge his attorneys, and to represent himself. The trial court permitted Bishop then to act. as his own counsel but ordered the public defenders to stand by to render any assistance that Bishop requested. After a penalty hearing before a three-judge panel, Bishop was sentenced to death. On the mandatory appeal to the Nevada Supreme Court, Bishop at first consented to being represented by the public defenders, but later changed his mind and then sought to have the appeal dismissed. The Nevada Supreme Court declined to dismiss and ruled on the merits affirming the conviction. Lenhard and Fransen, acting under ethical and moral obligations, filed the petition for writ of habeas corpus and the stay of execution. The district judge denied the petitions on the ground that Lenhard and Fransen had no standing to act as “next friend” of Bishop. The Ninth Circuit Court of Appeals stated: Bishop himself has steadfastly maintained that he does not wish to seek relief in the federal courts and refuses to authorize any petition for habeas corpus or stay of execution to be filed on his behalf. Most recently he appeared in open court at the hearing before the district court on August 23, 1979 and declared that he believes he has a constitutional right to waive any rights to a federal appeal and desires to do so. He maintained he was intelligently and competently exercising his right to refrain from seeking relief from the federal courts. The petitioners concede that if Bishop is competent he may indeed refuse to pursue relief in the federal courts, acknowledging that this is in accord with the holding of Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). The issue as framed by the petitioners is that the execution should be stayed until a competency hearing can be held to determine Bishop’s competence to waive possible relief in the federal courts. Petitioners contend this is mandated by Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), wherein the Supreme Court remanded for such a hearing. In Rees, however, there was conflicting psychiatric evidence concerning the competence of Rees. In that case Rees had been found by one psychiatrist to be mentally incompetent. In this case, in contrast, there has been no showing of Bishop’s incompetence. The Court, after reviewing the evidence bearing on Bishop’s competence, stated, “We find that there has been no evidence sufficient to warrant a hearing on the issue.” The court concluded: It is clear from the testimony of Bishop before the district court that he does not authorize and in fact contests the right of these petitioners to bring the writ of habeas corpus or to request stay of execution. Therefore, under the holding of Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), petitioners lack standing to bring the writ or request the stay. The application for stay of execution is denied and the appeal from the denial of a writ of habeas corpus is dismissed. Judge Snead concurred, pointing out that Rees v. Peyton, did not control, “because there exists on the record now before us no evidence that causes us to experience doubt concerning Bishop’s capacity to appreciate his position and make á rational choice with respect to continuing or abandoning further litigation.” This Court recently ruled in the case of Fairchild v. Lockhart, Case No. PB-C-85-282, that Gilmore and Lenhard gave Fair-child the right to abandon his habeas corpus petition if the Court was convinced that Fairchild was competent and was making the decision with full knowledge of all the pertinent facts and circumstances. All that is needed is a knowing and an intelligent decision made by a person whose competence has been firmly grounded. But the Court is convinced that Gilmore and Lenkard do not control the issue presently before the Court. In both of those cases, the entire trial, including both the guilt and penalty phases, had been completed. Here, it is argued that there is a fundamental defect in the penalty phase of Singleton’s trial: no evidence was submitted of mitigating circumstances, as contemplated by the Arkansas statute, although such mitigating circumstance evidence was available. Should the decision not to participate in the penalty phase of the trial belong only to the defendant, or does the state have an independent interest in requiring the production of evidence of mitigating circumstances so that the sentencing body will have all of the evidence contemplated by the statute (i.e., the evidence of both the aggravating and the mitigating circumstances) before making the choice between the penalty of death and life without parole? The case of Trimble v. State, 693 S.W.2d 267 (Mo.App.1985) dealt with a strikingly similar factual situation. There, Mr. Trim-ble was convicted of capital murder and the jury imposed the death sentence. The conviction and sentence were affirmed upon direct appeal to the Supreme Court of Missouri. In his post-conviction proceeding he raised fourteen points relative to the sentencing or penalty phase and eight relating to the determination of guilt. Because of its finding of ineffectiveness of counsel at the guilt-innocence phase, the Missouri Court of Appeals ordered a new trial but it nevertheless went on to deal extensively with the claimed errors in the sentencing process. The Court began its discussion by describing the factual background: Movant, at trial, at sentencing, and in this Rule 27.26 proceeding, has resisted all efforts by his counsel to raise any issue with respect to the imposition of the death penalty. There can be no doubt of movant’s settled intention to instruct his counsel in this area. At trial, he specifically instructed counsel that no evidence in mitigation be offered and that no argument be made in the penalty phase of the trial. One of the differences between this case (Singleton’s) and Mr. Trimble’s case should be noted. When the conflict between the attorney and client arose in the latter case the trial judge was apprised of the situation. He thereupon conducted an extensive hearing to determine that Trimble was making a voluntary and informed choice in instructing his attorney not to present evidence or argument in mitigation. The trial court found that Mr. Trimble had in effect made a knowing and voluntary waiver of counsel in directing his attorney not to present evidence or argument at the sentencing hearing. In the Missouri Court of Appeals, Trimble’s attorney asserted this to be error, although Trimble himself, pro se, reiterated his desire not to challenge the sentencing phase. Other alleged deficiencies in the sentencing phase were also asserted on the appeal. The Missouri Court of Appeals stated: These claims are aggregated because a single issue is dispositive of them all. Movant’s settled purpose to not raise these claims and his equally strong and unequivocal direction to counsel to refrain from action at the trial and appellate levels cannot be doubted. The question posed is the ineffectiveness of counsel in failing to take action to introduce and argue the following evidence, despite that direction. In Trimble there was apparently much evidence which could have been introduced by way of mitigation, whereas in the case here (Singleton), this potential was limited to testimony concerning the defendant’s background and his use of alcohol and marijuana prior to the murder. The attorneys for Trimble argued that, in criminal cases, there are only three decisions which must be made by the client: (1) what plea to make; (2) whether to waive a jury trial; and (3) whether to testify on his own behalf. They contended that all other strategic and tactical decisions were within the exclusive province of the lawyer to decide after consultation with his client. The state responded by asserting that cases like Gilmore and Lenhard controlled. The Missouri Court of Appeals distinguished those authorities as follows: The cited authority and the argument do not fully address the issue posed here because these cases all relate to the prisoner’s choice after a trial in which the normal defense function has occurred. The cases cited relate to the question of the right of appeal. The claim in the instant case attacks the trial proceeding itself, which presents a different issue. The court then went through a discussion of the U.S. Supreme Court cases establishing the constitutional parameters within which the death penalty might appropriately be imposed. Out of these principles grew the bifurcated system of trial under which the sentencing authority receives information relevant to sentencing and also the standards to guide its use of that information. The Missouri Legislature passed a capital murder statute responsive to the U.S. Supreme Court case. The Missouri Court of Appeals noted: It is not the bifurcated proceeding that is vital. Rather, it is the information and guidance given to the sentencing authority which enables it to exercise discretion in imposing the death penalty without random, freakish, or discriminatory results. Gregg [v. State of Georgia ], supra, 428 U.S. [153] at 153, 96 S.Ct. [2909] at 2909 [49 L.Ed.2d 859 (1976)]. These procedures are, of course, a protection to the individual accused, but also serve an entirely separate purpose. It must be remembered that Furman invalidated the death penalty statutes of about 39 states and avoided the death penalty for hundreds of prisoners awaiting trial and execution under those statutes. In validating subsequently enacted statutes, the Gregg court stressed that a sentencing procedure, giving the jury individualized information about the defendant and guidelines for applying that information, vitiated the random and disproportionate imposition of the death penalty, and thus avoided the constitutional attack made in Furman. Essential to the Missouri statutes’ application of the death penalty, is the finding by the jury that the aggravating circumstances outweigh the mitigating circumstances. The finding of an aggravating circumstance is but the threshold question. The jury must then weigh the evidence before it imposes the death penalty. The Missouri statute thus presupposes the constitutional requirement and embodies it in the statute. The court accepted that the jury function was neglected in the sentencing phase of the trial because only Trimble’s age was submitted in mitigation. If this deficiency had been occasioned by the decision of Trimble’s attorney, then it is clear that ineffectiveness would have been established under the Strickland test. The Missouri Court of Appeals then reached its decision using the following analysis: The difficulty in the case arises from the manner in which the issue is posed. Here, we have no inadvertence or neglect of counsel. Trial counsel was prepared to offer the evidence and argument, and urged his client, movant, to permit that effort. Movant was obdurate. He did not want that course pursued. Even the trial court’s warning that movant’s chosen course of action would, in all probability, result in the death penalty, failed to persuade him. The issue is thus to détermine trial counsel’s duty in this unusual situation. The state urges that counsel had no duty to act, as the client has essential control of the case. It buttresses the argument by citing Missouri Supreme Court Rule 4, Code of Professional Responsibility, E.C. 7-7 and 7-8, asserting these ethical canons make it plain that the decision was for the client, and the lawyer must accept the client’s determination, even though contrary to the lawyer’s advice. Movant’s counsel asserts that ABA Standard for Criminal Justice Sec. 4-52 restricts the client’s control to plea entry, jury waiver, and right to testify. The state says that the ABA Standards have not been approved, and that State v. Thomas, 625 S.W.2d 115 (Mo.1981), is on all fours with the present case. In Thomas, the defendant directed his attorney not to present insanity or diminished capacity, a defense which counsel suggested was viable in the case. The court held an extensive hearing and counsel complied with defendant’s direction. On appeal, the claim was made that counsel was ineffective. The court quoted and relied upon Missouri Supreme Court Rule 4, E.C. 7-7, holding it was not a breach of duty for the lawyer to accede to the client’s demands after fully informing him of his rights. The court further held: While a defendant has a Sixth Amendment right to effective assistance of counsel, he may not be forced to accept this assistance if his decision to represent himself is informed and voluntary. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Similarly, he may not be forced to accept major decisions of trial strategy if he is fully informed and voluntarily decides not to follow the advice of his lawyer. It would be absurd to say that a defendant may waive the assistance of counsel entirely and yet may not waive the benefit of counsel’s advice with respect to a particular decision, such as whether or not to assert a particular defense. The Court in Far-etta stated that the Sixth Amendment ‘speaks of the “assistance” of counsel, and an assistant, however expert, is still an assistant.’ Id. at 820, 95 S.Ct. at 2533. State v. Thomas, supra, 625 S.W.2d at 124. The state is not fully correct in asserting the ABA Standards have not been approved. In State v. Fitzpatrick, 676 5. W.2d 831 (Mo. banc 1984), the court cited Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), and the standards utilized therein, and upheld counsel’s right to decide, independently of the client’s wishes, whether to request a mistrial. The Fitzpatrick rationale and holding run contrary to the rationale and holding in Moore. These cases demonstrate the continuing difficulty in determining defense counsel’s role in. the criminal trial. Many cases protect counsel from claims of ineffectiveness on the ground of a tactical choice made despite the client’s wishes. On the other hand, when situations such as Moore are presented, the courts talk in terms of waiver. Thus, the cases find no error when counsel accedes to client demand, even though the accession may not be a wise choice. On the other hand, the lawyer’s choice made contrary to the client’s wishes will also be approved, even where the wisdom, in hindsight, may be dubious, on the ground that counsel has control of the decisional process and must have such control to be effective. Despite pious pronouncements about the necessity for independence of counsel, Strickland, supra, 104 S.Ct. at 1064, the surest way to avoid a claim of ineffectiveness is to abdicate to the client’s wishes, no matter how ill-advised, and to make a record. There is more than a little hint that the courts are concerned with counsel and client “sand bagging” the court with error predicated upon counsel and client agreeing upon a course of conduct which demonstrates egregious harm to the defendant. In Lahmann v. State, 509 S.W.2d 791 (Mo. App.1974), the court held that a client’s and counsel’s joint decision for counsel to sit mute through the trial could not serve to vitiate the trial. The Lahmann court cited Thomas v. State, 475 S.W.2d 98 (Mo. 1971), where counsel, with the defendant's agreement, failed to act as counsel, eschewing cross-examination, tender of evidence, and argument. The court held that, if error could be predicated upon such conduct, the defendant and his counsel could present an absolute barrier to conviction' The facts of the instant case present, in sharp relief, a conflict between the constitutional principle of Gregg and the principles developed to guide the application of the Sixth Amendment right to counsel. Writing upon a clean slate, the decision might be to give precedence to the principle of Gregg. The decisions in Moore and Thomas, however, require this court to find that counsel was not ineffective in acquiescing in the movant’s desires concerning the evidence and argument at the punishment stage of the trial. As will be noted, the Missouri Court, with some misgivings, went along with the two Missouri decisions, State v. Thomas, 625 S.W.2d, 115 (Mo.1981) and State v. Moore, 615 S.W.2d 108 (Mo.App.1981). Two important, unavoidable inferences can be drawn from the Trimble case, assuming that case is correct: (1) that the Missouri capital murder statute with its penalty phase procedures does not require that mitigating evidence, when available, be presented at the sentencing phase, and (2) that'the result in Trimble does not violate any constitutional requirements. It should be noted that the court in Trimble almost reluctantly reached its decision. It felt obligated to follow the Missouri Supreme Court cases which it believed to be contrary to the teaching of Gregg, whereas, had it been “writing upon a clean slate,” the decision might have been otherwise. Before leaving Trimble, it is important to note that the Thomas case, upon which it relied, arose out of a different factual situation. At the guilt-innocence phase of the trial, the defendant directed his attorney not to present evidence of insanity or diminished capacity even though his attorney felt that such defenses might be viable. After an extensive hearing on the issue, the defendant’s attorney was permitted to comply with his client’s instructions. On appeal, the claim was made that counsel was ineffective. If the client is competent to stand trial and to work with his attorney, can it be said that he does not have the right to determine which defenses, if any, he wishes to present? In Trimble the critical issue did not arise until after the defendant’s conviction of capital murder. The state’s interest, after conviction, in requiring the penalty phase to meet statutory or constitutional requirements is different. A conclusion directly contrary to Trim-ble was reached in People v. Burgener, 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251 (1986). The factual background was stated by the court: Defendant did not participate in the penalty phase of his trial, and defense counsel presented no mitigating evidence or argument on his behalf during this stage of the proceeding. Defense counsel made clear to the court, in a discussion held in chambers, that he had proposed to call in mitigation a psychiatrist, the defendant’s parents, and a person who served in prison at the same time as defendant, but that defendant had instructed him not to do so. Defendant personally confirmed these instructions. The People then presented evidence of incidents of defendant’s violent behavior during prior periods of incarceration as well as evidence of prior felony convictions for such charges as battery, robbery, and attempted murder. Defense counsel, acting on direction of his client, stipulated to the evidence. At the conclusion of the prosecutor’s argument, the defendant’s attorney read a short statement prepared by his client in which he requested the jury to return a sentence of death. The court decided the issue as follows: In People v. Deere, supra, 41 Cal.3d 353, 222 CaI.Rptr. 13, 710 P.2d 925 [1985], we recently held that the failure of defense counsel to present any mitigating evidence in the penalty phase of a capital trial, in obedience to his client’s request, required that the penalty be set aside. We emphasized the state’s interest in a reliable penalty determination, and observed: “To allow a capital defendant to prevent the introduction of mitigating evidence on his behalf withholds from the trier of fact potentially crucial information bearing on the penalty decision no less than if the defendant was himself prevented from introducing such evidence by statute or judicial ruling.” (Id., at p. 364, 222 Cal.Rptr. 13, 710 P.2d 925.) And, we concluded: “We have no doubt that a judgment of death imposed in such circumstances constitutes a miscarriage of justice (Cal. Const., art. VI, § 13): not only did defendant not have a fair penalty trial — in effect he had no penalty trial at all.” (Id., at p. 368, 222 Cal.Rptr. 13, 710 P.2d 925.) ****** The fact that defense counsel deliberately refrained from introducing any evidence in support of a lesser penalty than death, though such evidence was available, in itself requires penalty reversal under Deere. The case, People v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925 (1985), upon which the court relied in Burgener, discussed the problem in considerably more detail. In the Deere case the court explicitly makes the distinction between guilt phase decisions and penalty phase decision. The court stated: Appellate counsel now suggests that defendant’s very acts of pleading guilty to a capital offense and waiving a jury trial amounted to a “suicide attempt” which disclosed his incompetence. The record does indicate that defendant felt great remorse for his offenses and was prepared to suffer the consequences of a judgment of death. But that attitude does not necessarily demonstrate an incompetence to stand trial or to plead guilty. His plea and waiver were concurred in by counsel. As stated in [People v.] Teron, at the guilt phase a defendant bears no duty to present a defense or to rebut the People’s case, and the fact that he declines to present a defense does not demonstrate a lack of capacity to waive his rights. (23 Cal.3d [103] at p. 115, 151 Cal.Rptr. 633, 588 P.2d 773 [1979].) Then the court turned its attention to the contention that the sentence of death must be set aside because of the failure of the defense counsel to offer any mitigating evidence during the penalty phase of the trial apart from the defendant’s own statement and some testimony at a preliminary investigation and a suppression hearing. The client’s statement was to the effect that he knew he had done wrong, believed in an eye for an eye, and felt that he should die for his crime. The attorney went along with Deere’s instructions “based on his desires and my conclusion that I have no right whatsoever to infringe on his decisions about his own life.” The opinion in Deere first discusses the case of People v. Stanworth, 71 Cal.2d 820, 80 Cal.Rptr. 49, 457 P.2d 889 (1969) where the defendant not only sought to waive a jury trial on penalty but also attempted to dismiss his attorney so that no evidence would be presented on his behalf. He also made it clear that he wanted to die. The Deere court then stated: Stanworth cited People v. Werwee (1952) 112 Cal.App.2d 494, 500, 246 P.2d 704, for the proposition that “ ‘Although a defendant may waive rights which exist for