Page:Walls v. State (1999).pdf/12

Rh prosecutor to disclose other sexual acts of a pedophile under Ark. R. Evid. 404(b). There is also the fact that the circuit judge stated he would not consider dismissed solicitation-to-murder charges in connection with the Hogans. The Stocks murders came in solely under the cloak of victim-impact evidence. The Nichols case simply does not control this issue.

[10, 11] The State further contends that the solicitation-to-murder evidence was admissible as an aggravating circumstance under our sentencing law, § 16-97-103(6). The State cites Hill v. State, supra, as authority. We held in Hill that evidence of a prior, uncharged robbery attempt was admissible in the sentencing phase, following a guilty plea for robbery against the same victim. But we made it clear in Hill that such relevant evidence should only come in "in the absence of prejudice." Hill, 318 Ark. at 415, 887 S.W.2d at 278 (citing Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987)). We concluded in Hill that the evidence was not prejudicial to the defendant. In the instant case, however, we cannot reach that same conclusion. Walls, without question, was prejudiced by the evidence of the Stocks murders, for the reasons already stated.

[12] We hold that the circuit judge abused his discretion (1) when he allowed this testimony about the Stocks murders in as victim-impact evidence, and (2) when he held Walls responsible for those murders in fixing his sentence.

This issue really brings into sharp focus the protections afforded defendants in the criminal justice system. No matter how reprehensible the crimes committed, it is an article of faith in criminal law that we do not sentence for crimes that have not been proven. Nor should victim-impact evidence be used as a vehicle for testimony that Walls was an accessory to the murder of the Stocks family. We recognize how difficult a second sentencing hearing will be for the victims and their families. Nevertheless, if the criminal justice system is to have any credence at all, it must adhere to certain basic principles. It is unfair in the extreme for the sentencing judge to consider testimony of an uncharged, unproven crime for sentencing purposes under the aegis of victim-impact testimony.