Fretwell v. Lockhart, PB-C-87-316.

Decision Date29 June 1990
Docket NumberNo. PB-C-87-316.,PB-C-87-316.
Citation739 F. Supp. 1334
PartiesBobby Ray FRETWELL, Plaintiff, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Defendant.
CourtU.S. District Court — Eastern District of Arkansas

Richard Medlock, Little Rock, Ark., for plaintiff.

Clint Miller, Asst. Atty. Gen., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

ROY, District Judge.

Before the Court is the Petition for Writ of Habeas Corpus of Bobby Ray Fretwell, petitioner herein, to which respondent has fully responded. After numerous and lengthy delays, the Court has carefully reviewed all pleadings and submissions of both parties and the petition is ripe for consideration on its merits.

Early on the morning of December 14, 1984, petitioner gained entry into the home of Sherman Sullins, a resident of Marshall, Arkansas. Petitioner proceeded to rob Mr. Sullins of his money at gun point and struck him on the head with the weapon. When that blow failed to render Sullins unconscious, petitioner placed the barrel of the gun against Sullins' temple and shot and killed him. Petitioner then took the keys to Sullins' pick-up truck and fled, along with petitioner's wife and another companion, in that vehicle. Petitioner and his companions were ultimately arrested in the State of Wyoming while traveling in Sullins' truck. The murder weapon was subsequently found in the truck.

Petitioner was returned to Arkansas and charged with capital murder in the slaying of Sherman Sullins. A plea of not guilty by reason of insanity was initially entered on petitioner's behalf, but that plea was withdrawn after psychological and psychiatric examinations revealed that petitioner was competent both at the time of the commission of the offense and the time of trial. Trial counsel for petitioner then attempted to persuade the trial court to permit petitioner to plead guilty to capital murder in exchange for an agreement to sentence petitioner to life imprisonment without the possibility of parole. The trial court denied that request when the prosecuting attorney objected, as was his right under Arkansas law.

Trial counsel filed a number of pre-trial motions, most notably a motion to suppress several confessions given by petitioner, first to the authorities in Wyoming and later to those in Arkansas. On August 6, 1985, just prior to the beginning of the guilt phase of petitioner's trial, the trial court conducted a hearing on the motion to suppress. After hearing testimony from law enforcement officials from Wyoming and Arkansas, from a psychologist and a psychiatrist from the Arkansas State Hospital, and from petitioner himself, the trial court concluded that petitioner had made a knowing and intelligent waiver of his right against self-incrimination and that the confessions had been voluntarily given. The motion to suppress was denied.

After considering the overwhelming evidence against his client and the circumstances surrounding the crime, trial counsel determined that it was in his client's best interest to admit his culpability to the jury and appeal to their mercy in an attempt to avoid imposition of the death penalty. The record reflects that petitioner agreed with trial counsel's strategy and willingly went along with it. Rather than put the prosecution to its burden of proving petitioner's guilt, trial counsel and petitioner admitted his culpability throughout the guilt phase of the trial and appealed for mercy, either by a conviction for first degree murder or imposition of a sentence of life without parole. Petitioner was convicted of capital murder on August 7, 1985.

Immediately after the jury returned its verdict of guilty on the charge of capital murder, the trial court commenced the sentencing phase of the trial. The prosecution declined to put on any additional evidence of aggravating circumstances beyond that adduced during the guilt phase. Trial counsel called both petitioner and Dr. Douglas Stevens, a clinical psychologist, as witnesses on petitioner's behalf in an effort to establish mitigating circumstances. In the closing arguments, the prosecution argued that the evidence had established the existence of two aggravating circumstances—one, that the murder was committed for pecuniary gain, and, two, that the murder was committed to facilitate petitioner's escape. Trial counsel argued that neither of those allegations constituted valid aggravating circumstances under the law and that the evidence had clearly established that petitioner's difficult and disadvantaged childhood was a mitigating factor for the jury.

The trial court submitted the two aggravating circumstances advanced by the prosecution for the jury's consideration. After deliberating for approximately six and one-half hours, the jury found that petitioner had committed the murder for pecuniary gain and found no mitigating factors in petitioner's favor. The jury determined that petitioner's punishment should be death.

Petitioner's conviction and sentence were affirmed on appeal to the Supreme Court of Arkansas in 1986. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Petitioner's subsequent petition for post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure was denied on April 27, 1987. Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987). Thereafter, on May 27, 1987, petitioner filed the petition now before this Court.

Petitioner advances the following five grounds for relief from his conviction and sentence:

1. Petitioner was denied effective assistance of counsel at the guilt phase of his trial in violation of his rights under the Sixth and Fourteenth Amendments.
2. Petitioner was denied effective assistance of counsel at the guilt phase of his trial in violation of the Sixth and Fourteenth Amendments because counsel failed to prepare and present evidence at the suppression hearing on defendant's confession.
3. Petitioner was denied effective assistance of counsel at the guilt phase of his trial in violation of his rights under the Sixth and Fourteenth Amendments because counsel argued for the inclusion of an erroneously worded jury instruction on the lesser included offense of first degree murder.
4. Petitioner was denied effective assistance of counsel at the penalty phase of his trial in violation of his rights under the Sixth and Fourteenth Amendments because counsel failed to investigate or prepare for the penalty phase.
5. The trial court erred in refusing to set aside the verdict as being contrary to the evidence.

Petitioner's fifth ground for relief, that the trial court erred in refusing to set aside the verdict, was not raised on appeal to the Supreme Court of Arkansas. Further, no explanation for the failure to raise that point on appeal has been advanced. Accordingly, review of that claim in this federal habeas corpus proceeding is barred. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also Stokes v. Armontrout, 893 F.2d 152 (8th Cir.1989).

In his second ground for relief, petitioner contends that he was denied effective assistance of counsel during the guilt phase by trial counsel's failure to prepare and present evidence at the suppression hearing. The Court has thoroughly reviewed the transcript of the suppression hearing held on August 6, 1985. Trial counsel objected to holding the hearing at that time due to the unavailability of his expert witness, Dr. Stevens, at that time. That objection was overruled. It is...

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3 cases
  • Lockhart v. Fretwell
    • United States
    • United States Supreme Court
    • January 25, 1993
    ...penalty cases," and that failure to make the Collins objection amounted to prejudice under Strickland v. Washington, supra. 739 F.Supp. 1334, 1337 (ED Ark.1990). The District Court granted habeas relief and conditionally vacated respondent's death sentence. Id., at The Court of Appeals affi......
  • State v. Dubray
    • United States
    • Supreme Court of Nebraska
    • October 10, 2014
    ...180 (1993).69 See Fretwell v. Lockhart, 946 F.2d 571 (8th Cir.1991), reversed, Fretwell, supra note 68.70 See Fretwell v. Lockhart, 739 F.Supp. 1334 (E.D.Ark.1990), reversed, Fretwell, supra note 68.71 Fretwell, 506 U.S. at 369–70, 113 S.Ct. 838.72 Id., 506 U.S. at 371, 113 S.Ct. 838.73 See......
  • Fretwell v. Lockhart
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 23, 1991
    ...consistent with the Constitution. See 28 U.S.C. § 2254(a). 1 A more complete account of the trial can be found in Fretwell v. Lockhart, 739 F.Supp. 1334, 1334-36 (E.D.Ark.1990).2 Arkansas has adopted a bifurcated capital sentencing scheme. First, the jury must find the defendant guilty of a......

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