Cite as 2020 Ark. 42 SUPREME COURT OF ARKANSAS No. CR-19-377
Opinion Delivered: January 30, 2020
JAMES DERRICK GRUBBS APPELLANT APPEAL FROM THE WHITE COUNTY CIRCUIT COURT V. [NO. 73CR-95-138]
STATE OF ARKANSAS HONORABLE ROBERT EDWARDS, APPELLEE JUDGE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
This is an appeal from a resentencing hearing conducted pursuant to Miller v.
Alabama, 567 U.S. 460 (2012). The defendant committed capital murder at the age of
seventeen and received an automatic sentence of life without parole. The issue raised now
is whether the circuit court abused its discretion when it refused to instruct the jury on two
instructions proffered by the defendant at the resentencing hearing. We hold that the
circuit court acted within its discretion; accordingly, we affirm.
I. Factual Background
James Derrick Grubbs pleaded guilty to capital murder on September 26, 1995. He
was seventeen years old when he committed the underlying offense. He was sentenced to
life without the possibility of parole. In 2012, the United States Supreme Court in Miller v.
Alabama held that the Eighth Amendment to the United States Constitution prohibited the automatic imposition of a sentence of life imprisonment without the possibility of
parole when the offender was under the age of eighteen when the crime was committed.
567 U.S. at 465. It was ultimately determined that Grubbs should be resentenced by a jury.
A two-day resentencing hearing was held. The State presented testimony from law
enforcement and the victim’s family. The defense offered testimony from Grubbs’s family;
from prison officials; and from an expert witness in neuropsychology and child psychology
who had examined Grubbs. After hearing this testimony, the jury imposed a sentence of
life in prison.
This appeal arises from two jury forms proffered by Grubbs that were ultimately
rejected by the circuit court. The first instruction at issue involved language, largely derived
from Miller, regarding a juvenile’s reduced culpability. The given instruction included the
following language, which was virtually identical to that of the proffered instruction:
[Grubbs] must be treated as a juvenile for purposes of this sentencing. Juveniles are constitutionally different from adults for purposes of sentencing.
First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.
Second, children are more vulnerable to negative influences and outside pressures, including from their family and peers; they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime producing setting [sic].
Third, a child’s character is not as well formed as an adult’s character. His traits are less fixed and his actions less likely to be evidence of irretrievable depravity.
Before sentencing James Derrick Grubbs to life imprisonment, the jury must take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.
2 While the given instruction stopped there, Grubbs’s proffered instruction went further. It
would have instructed the jury with this additional paragraph:
Jurors may sentence James Grubbs to a lifetime in prison only if you conclude that James Grubbs is that rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life imprisonment is justified. In light of children’s diminished culpability and heightened capacity for change, appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.
The circuit court declined to give an instruction with this language, ruling instead that the
given instruction “correctly states what is required under Miller v. Alabama.”
The second jury instruction at issue contained mitigating circumstances. This
instruction was also proffered by Grubbs but rejected by the circuit court. The proffered
form contained fourteen circumstances for which the jury was given the option to select
either, “All members of the jury find that this circumstance exists” or “No member of the
jury finds that this circumstance exists.” The form was titled “Special Circumstances.” A
few examples of the circumstances included whether Grubbs lacked maturity due to his
age; whether he had completed high school; whether he could be rehabilitated; and
whether he was a good son. In refusing to give this instruction, the court stated as follows:
I don’t think the law requires that any specific findings of special circumstances in this case like it would in a death penalty case. The standard verdict form that I will give the jury, in my opinion, is the appropriate verdict form. The instruction which defense has tailored from a death penalty case, in my opinion, does not apply to this case.
On appeal, Grubbs argues that the circuit court abused its discretion when it refused to
give his two proffered instructions.
3 II. Law and Analysis
A party is entitled to a jury instruction when it is a correct statement of the law and
when there is some basis in the evidence to support giving the instruction. Vidos v. State,
367 Ark. 296, 300, 239 S.W.3d 467, 476 (2006). We will not reverse the circuit court’s
decision to give or reject an instruction unless the court abused its discretion. Clark v. State,
374 Ark. 292, 305, 287 S.W.3d 567, 576 (2008). When the circuit court determines that
the jury should be instructed on an issue, the model criminal instructions must be used
unless the court concludes it does not accurately state the law. Henderson v. State, 349 Ark.
701, 710, 80 S.W.3d 374, 380 (2002). If a proffered instruction was not a correct
statement of the law, that is a “valid and appropriate reason to refuse to give a particular
jury instruction.” Stivers v. State, 354 Ark. 140, 146, 118 S.W.3d 558, 562 (2003). Nor will
it be error for the circuit court to refuse to give a proffered instruction if other instructions
adequately covered the issue. See Ventress v. State, 303 Ark. 194, 197, 794 S.W.2d 619, 620
(1990).
Here, we hold that the circuit court did not abuse its discretion when it refused to
give Grubbs’s first proffered instruction regarding Miller. In Miller, the United States
Supreme Court held that a “mandatory” sentence of life without parole for a juvenile
violates the Eighth Amendment. 567 U.S. at 465. The companion case to Miller was
Jackson v. Hobbs, which involved an Arkansas defendant. The juvenile defendant—Kuntrell
Jackson—had been sentenced to life without the possibility of parole after a jury convicted
4 him of capital murder. Id. at 466. Jackson could not receive the death penalty due to his
age; thus, the only available sentence was life in prison without parole. See id.
The Supreme Court reasoned that “[m]andatory life without parole for a juvenile
precludes consideration of his chronological age and its hallmark features.” Id. at 477. A
sentencing regime authorizing such a sentence “neglects the circumstances of the homicide
offense . . . and ignores that he might have been charged and convicted of a lesser offense if
not for incompetencies associated with youth.” Id. Even so, the Court did not prohibit a
jury from imposing a life without parole sentence in a homicide case, but only after
“tak[ing] into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” Id. at 480.
The Court in Miller did not require that a jury receive the type of instruction
Grubbs proffered. The Miller Court did not opine on the minutiae of sentencing
instructions. While the Court theorized that a life-without-parole sentence would be
“uncommon,” it did not require a jury to be instructed on that theory as a matter of law.
Rather, the Court required that the sentencing body “take into account how children are
different.” Id. at 480. Such was the case here both in fact and in law.1 As to facts, Grubbs
presented witnesses about his upbringing and expert testimony about the nature of brain
1 Both the State and the dissenting opinion maintain that Grubbs was not entitled to any instruction regarding Miller because he was not eligible for a sentence of life without parole. See Fair Sentencing of Minors Act of 2017, § 13, codified at Ark. Code Ann. § 16- 93-621 (Supp. 2019). The issue raised in this appeal, however, is whether the circuit court abused its discretion when it failed to instruct the jury with Grubbs’s additional paragraph, not whether Grubbs was entitled to a Miller-type instruction at all.
5 development. As to law, the circuit court’s given instruction on this topic correctly
informed the jury of the state of the law following Miller. The court’s refusal to give
additional language was not an abuse of discretion.
The circuit court also did not abuse its discretion when it refused to give Grubbs’s
second proffered instruction containing mitigating circumstances. As the circuit court
noted, the proffered instruction appeared to have been derived from AMI Crim. 2d 1008,
which implements the trial procedure when a sentence of death is being sought. A death
sentence is authorized only after the jury returns written findings that (1) an aggravating
circumstance exists 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. Ark. Code Ann. § 5-
4-603 (Repl. 2013). Form 2 of AMI Crim. 2d 1008 provides a template to instruct the jury
regarding various mitigating circumstances and gives the jurors the option to select, under
each circumstance, whether all, one or more, or none found that the circumstance existed.
Grubbs fails to convincingly argue why a death-penalty aspect of the capital-
sentencing scheme should have been imported to his case, when the death penalty could
not be imposed. We decline to extend variations of Form 2 to cases that do not include the
possibility of a death sentence. Indeed, the proffered form was altered from the model. The
proffered form presented the jury with only two options: either all the jurors found the
circumstance to exist or none did. Unlike the model form, it did not have as an option “at
least one, but not all” of the jurors found the circumstance to exist. For this reason, the
6 proffered form was both “non-model” and likely to lead to confusion. We hold that the
court did not abuse its discretion when it refused to give this instruction.
III. Rule 4-3(i)
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been
examined for all objections, motions, and requests made by either party that were decided
adversely to appellant. No prejudicial error has been found.
HART, J., concurs.
WOMACK, J., concurs in part; dissents in part.
JOSEPHINE LINKER HART, Justice, concurring. I agree that this case must be
affirmed, but I cannot join the majority opinion. First, the majority fails to even properly
copy Mr. Grubbs’s actual points on appeal. They are:
I. The trial court erred by refusing to give the jury a proffered instruction based on Miller v. Alabama.
II. The trial court erred by refusing to give special verdict interrogatories proffered by Grubbs.
Inexplicably, the majority has confused “instructions” with “interrogatories.” Black’s Law
Dictionary defines a jury instruction as “A direction or guideline that a judge gives a jury
concerning the law of the case.” Black’s Law Dictionary 987 (10th ed. 2014). It defines a
special interrogatory as “A written jury question whose answer is required to supplement
a general verdict.” Black’s Law Dictionary 947 (10th ed. 2014). Through instructions, a
7 jury receives information from the court, whereas through interrogatories, the court
receives information from the jury.
In my view, the majority’s legal analysis is also flawed. The majority reasons that
the circuit court did not abuse its discretion because the proffered jury instruction was
not required by Miller v. Alabama, 567 U.S. 460 (2012). This analysis fails to reflect the
true legal and procedural posture of Mr. Grubbs’s case at the time of his sentencing
hearing.
Mr. Grubbs’s proffered instruction borrows language from the Miller Court’s
discussion of life sentences without parole for juvenile offenders. However, in Jackson v.
Norris, 2013 Ark. 175, 426 S.W.3d 906, this court struck the requirement of a
mandatory life-without-parole sentence for juvenile capital-murder defendants. The
Jackson court stated:
We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration. We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony. For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl.1997).
2013 Ark. 175, at 9, 426 S.W.3d at 911.
After Jackson was handed down, Mr. Grubbs’s sentence was vacated. Also, prior
to his sentencing hearing, in 2017, Arkansas Code Annotated section 16-93-613 (Supp.
2019) was amended to state:
8 (c) Except as provided for under § 16-93-619, for an offense committed before, on, or after the effective date of this act, a person who was a minor at the time of committing an offense listed under subsection (a) of this section is eligible for release on parole under this section.
Consequently, at the time of Mr. Grubbs’s sentencing hearing, he did not face a
sentence of life without the possibility of parole. While Jackson mandated that he was
entitled to present “Miller evidence,” in effect, he was no longer what we describe as a
“Miller” defendant. Thus, while it is true that a party is entitled to a jury instruction
when it is a correct statement of the law and when there is some basis in the evidence to
support giving the instruction. Vidos v. State, 367 Ark. 296, 300, 239 S.W.3d 467, 476
(2006), in this case, the circuit court did not abuse its discretion when it refused to give
Mr. Grubbs’s full instruction because it was not a correct statement of the law.
Finally, the circuit court did not err in refusing to give the special interrogatories
because they are not required by Arkansas law in any criminal case except for death-
penalty cases.
I concur.
SHAWN A. WOMACK, Justice, concurring in part and dissenting in part. I concur
in the judgment but cannot join the rationale of the majority. The sentencing
considerations required under Miller v. Alabama, 567 U.S. 460 (2012), apply only to
juvenile offenders facing a sentence of life without parole. Given that Grubbs faced a
maximum sentence of life with the possibility of parole, Miller did not apply to his
9 resentencing. He was, therefore, not entitled to any instructions under Miller. The
majority’s suggestion otherwise misconceives the scope of Miller, improperly expanding it to
encompass sentences less than life without parole.
Miller announced a substantive Eighth Amendment rule prohibiting the mandatory
sentencing of juvenile offenders to life without parole. Id. at 479.1 It also contained a
procedural component that “requires a sentencer to consider a juvenile offender’s youth
and attendant characteristics before determining that life without parole is a proportionate
sentence.” Montgomery, 136 S. Ct. at 734 (citing Miller, 567 U.S. at 483). This requirement
“gives effect to Miller’s substantive holding that life without parole” may be
disproportionate for certain juvenile offenders. Id. at 735. And thus, before sentencing a
juvenile to life without parole, the sentencer must “take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” Miller, 567 U.S. at 480 (emphasis added). In short, Miller has no
relevance to sentences less than life without parole.
This is true even though Grubbs’s original sentence of life without parole was
vacated under Miller and Montgomery. As the majority recognizes, the jury was asked to
resentence Grubbs to a term of ten to forty years or to life with the possibility of parole
after thirty years. Because Grubbs was not faced with the prospect of life without parole at
1 The United States Court of Appeals for the Fourth Circuit recently held that Montgomery v. Louisiana, 136 S. Ct. 718 (2016), expanded Miller’s scope to include discretionary sentences of life without parole. See Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018). The case is currently pending before the United States Supreme Court. See Mathena v. Malvo, No. 18-217, 139 S. Ct. 1317 (2019) (mem) (granting certiorari).
10 resentencing, Miller simply did not apply. To suggest otherwise, the majority must willfully
ignore Miller’s explicit parameters. Indeed, Miller emphasized the “life without parole”
component of its holding numerous times. See Miller, 567 U.S. at 465, 470, 473–74, 477,
479, 487, 489. Why would the Miller Court spill so much ink over the “particular penalty”
of life without parole unless it was a critical distinction? See id. at 483.
What is more, “the Supreme Court has placed no explicit constraints on a
sentencing court’s ability to sentence a juvenile offender to life with parole.” Bowling v.
Director, Va. Dep’t of Corr., 920 F.3d 192, 197 (4th Cir. 2019); see also United States v. Sparks,
941 F.3d 748, 754 (5th Cir. 2019) (life with the possibility of parole “can be imposed on a
mandatory basis for juveniles without implicating Miller”). That said, Arkansas permits a
defendant convicted of capital murder to present mitigating evidence regarding the “youth
of the defendant at the time of the commission of the capital murder.” Ark. Code Ann. §
5-4-605(4) (Supp. 2018); see also Ark. Code Ann. § 16-97-103(6) (Repl. 2016). To the
extent Grubbs could present mitigating evidence of youth at resentencing, it was
permissible under Arkansas statute—not Miller and its progeny.
The majority responds that the issue on appeal is whether the circuit court abused
its discretion by failing to give Grubbs’s proffered instruction in its entirety, “not whether
Grubbs was entitled to a Miller-type instruction at all.” This is true. But the majority
cannot seriously contend that its opinion is so narrow. Indeed, the majority correctly
recites what Miller requires—and even references the “life without parole” distinction—but
then immediately misapplies Miller by concluding that “[s]uch was the case here both in
11 fact and in law.” And though the given instructions “correctly informed the jury of the
state of the law following Miller,” they were simply inapplicable to this non-Miller case. By
suggesting otherwise, the majority erroneously and improvidently expands Miller’s
requirements to sentences of less than life without parole.
Grubbs may well be a free man in five years’ time. That decision, of course, rests
within the discretion of the Arkansas Parole Board. As part of the Fair Sentencing of
Minors Act of 2017, the board must consider several factors announced in Miller, such as
“the diminished culpability of minors compared to that of adults,” and the “hallmark
features of youth.” Compare Ark. Code Ann. § 16-93-621(b) (Supp. 2018), with Miller, 567
U.S. at 477-79. These considerations are designed to help guide the parole decision but
are not controlling. Indeed, “[a] State is not required to guarantee eventual freedom to a
juvenile offender [serving life with parole] . . . [or] to release that offender during his
natural life.” Graham v. Florida, 560 U.S. 48, 75 (2010). However, the parole
considerations provide juvenile offenders “a meaningful opportunity to be released . . .
based on demonstrated maturity and rehabilitation.” See Ark. Code Ann. § 16-93-
621(b)(1); cf. Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75). Accordingly, it is
only at Grubbs’s eventual parole hearing that the so-called “Miller considerations” apply.
And even then, it is required as a matter of state law, not Eighth Amendment
jurisprudence.
As a final point, this is precisely the sort of needless hearing discussed in my dissent
in Harris v. State, 2018 Ark. 179, at 22–23, 547 S.W.3d 64, 75–76 (Womack, J.,
12 dissenting). The resentencing hearing was wholly unnecessary under Miller and in
violation of the Fair Sentencing of Minors Act. Id. Grubbs should have been resentenced
to life with the possibility of parole under the Act. See id.; Ark. Code Ann. § 5-10-
101(c)(1)(B) (Supp. 2018). The time and expense necessary to reach the exact same
sentence, but by jury, was an unwarranted waste of public and judicial resources.
In sum, Miller was inapplicable to Grubbs’s resentencing hearing. By improperly
broadening Miller to include discretionary sentences of life with parole, the majority has
established precedent for further exceeding the scope of Miller into all juvenile sentencing
cases. This is flatly inconsistent with Miller and Eighth Amendment juvenile sentencing
caselaw. Therefore, I must concur only in the judgment. I also join in part Justice Hart’s
concurring opinion with respect to Grubbs’s “special interrogatories” claim.
Cullen & Co., PLLC, by: Tim Cullen, for appellant.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.