Fretwell v. State

• Decision Date: 27 April 1987
• Docket Number: No. CR,CR
• Citation: 728 S.W.2d 180,292 Ark. 96
• Parties: Bobby Ray FRETWELL, Appellant, v. STATE of Arkansas, Appellee. 85-208.
• Court: Arkansas Supreme Court

Page 180

728 S.W.2d 180

292 Ark. 96

Bobby Ray FRETWELL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-208.

Supreme Court of Arkansas.

April 27, 1987.

PER CURIAM.

Petitioner Bobby Ray Fretwell was found guilty of capital felony murder and sentenced to death. We affirmed. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Petitioner now seeks an evidentiary hearing in circuit court pursuant to Criminal Procedure Rule 37 on the ground that he was not afforded effective assistance of counsel in either the guilt or penalty phases of his bifurcated trial.

Petitioner initially argues that counsel was ineffective in the sentencing phase in that he failed to object to the submission to the jury of "pecuniary gain" as an aggravating circumstance. Petitioner contends that since he was accused of aggravated robbery as the underlying felony to capital murder, the aggravating circumstance that the crime was committed for pecuniary gain duplicated an element of the offense of capital murder.

We do not find that counsel was ineffective for failing to assert the issue. At the time petitioner was tried, the question had not been raised in this court. An attorney is not ineffective for failing to raise every novel issue which might conceivably be raised.

Petitioner also contends that counsel should have moved to preclude submission to the jury of the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. As the jury did not find that the aggravating circumstance existed, petitioner could have suffered no prejudice from counsel's failure to object to the submission of the aggravating circumstance.

Petitioner alleges that counsel in his opening statement irrevocably committed him to the improvident strategy of admitting to the jury that he was guilty of shooting the victim during the robbery and relying on the jury's leniency to avoid the death penalty. Petitioner asserts that the tactic went beyond the bounds of ordinary trial strategy and virtually guaranteed a death sentence.

While another attorney may well have taken another course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. We have consistently held that it is inappropriate to grant an evidentiary hearing on an allegation of ineffective assistance of counsel related only to matters ordinarily within the realm of counsel's judgment. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

Douglas Stevens, a psychologist, was appointed at petitioner's request to assist in the preparation of his defense. Dr. Stevens testified at trial but was not available to testify at a pretrial hearing on the admissibility of petitioner's confession. Petitioner's attorney moved for a continuance until Stevens could appear for the hearing but the motion was denied. Petitioner contends that counsel was ineffective because he failed to prepare for the hearing and secure Dr. Stevens' presence.

The State presented evidence from the officers who took petitioner's confession and from a forensic psychologist and a psychiatrist, both of whom had examined petitioner at the Arkansas State Hospital. The officers testified that petitioner had been advised of his constitutional rights, no promises or threats had been made to induce the confession and that petitioner stated he understood his rights. Petitioner conceded that he said he understood his right but maintained that he had not actually understood them. After hearing the testimony, the court found the confession admissible but noted that its credibility could be attacked at trial.

To prevail on an allegation of ineffective assistance of counsel, the petitioner must meet the criteria set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the court held that the benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A petitioner must not only show that counsel made an error so serious that he was not functioning as the "counsel" guaranteed by the sixth amendment, but he must also demonstrate that the error resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Even if counsel's conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome...