¶1The time has come to reexamine our holding in Heard v. State, supra. Our statutes specifically provide for a separate hearing to fix punishment for those alleged to be habitual criminals:
(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of the defendant’s prior conviction or convictions. However, the defendant shall have the right to deny the existence of any prior convictions and to offer evidence in support of this denial;
¶2Ark. Code Ann. § 16-90-205(2) (1987). That language clearly does not authorize mitigation evidence. But at the same time it does not expressly preclude such evidence either. The majority opinion, when it holds that the accused may only rebut the existence of prior convictions, reads into this language a limitation that does not exist. By doing so it goes too far.
¶3The truth of the matter is that some trial judges can and do allow multiple offenders to offer testimony in mitigation during the sentencing phase. And that is where the matter should lie — with the trial judges to determine the propriety, scope and relevance of such testimony. Here, the majority takes that discretion away and denies the testimony altogether on the premise that § 16-90-205 forbids it. I disagree.
¶4Under our system of criminal procedure the jury for all intents and purposes sets the punishment for all offenders (unless trial by jury has been expressly waived by the offender). In cases where enhanced punishment is at issue and the sentencing phase is activated, the jury should have the benefit of all evidence in mitigation deemed relevant by the trial judge. This is especially true where the defendant has not previously testified. And because a bifurcated procedure is already in place for habitual criminals, mitigation testimony should not unduly burden the process.
¶5The trial judge, in the case before us, forbade mitigation testimony on the basis of Heard v. State, supra. Had he done so on the basis of his own discretion I would not object, since I believe the matter is best left to the discretion of the individual judges. But I cannot agree that our statutes eliminate mitigation testimony altogether in all cases for habitual criminals. To the extent that Heard v. State, supra, disallows such testimony in bifurcated trials, I would overrule it.
¶6I respectfully dissent.