Fairchild v. Norris

• Decision Date: 20 September 1993
• Docket Number: No. 93-975,93-975
• Citation: 314 Ark. 221,861 S.W.2d 111
• Parties: Barry Lee FAIRCHILD, Petitioner-Appellant, v. Larry NORRIS, Acting Director, Arkansas Department of Correction, Respondent-Appellee.
• Court: Arkansas Supreme Court

Page 111

861 S.W.2d 111

314 Ark. 221

Barry Lee FAIRCHILD, Petitioner-Appellant, v. Larry NORRIS, Acting Director, Arkansas Department of Correction, Respondent-Appellee.

No. 93-975.

Supreme Court of Arkansas.

Sept. 20, 1993.

Herbert C. Rule II, Perlester Hollingsworth, Little Rock, Steven W. Hawkins, New York City, for petitioner-appellant.

John W. Walker, Little Rock, for Annual Review Committee of Arkansas, Amicus.

J. Winston Bryant, Atty. Gen., Little Rock, for respondent-appellee.

PER CURIAM.

We deny appellant's request for stay of execution. Appellant offers several legal arguments which essentially are based upon his being presumptively mentally retarded. The issue of whether appellant is mentally retarded has previously been rejected by United States District Judge G. Thomas Eisele in Fairchild v. Lockhart, 744 F.Supp. 1429 (1989). Judge Eisele decided appellant voluntarily, knowingly and intelligently waived his Miranda rights before confessing his involvement in the robbery, rape and murder of Ms. Mason. In making this ruling he determined appellant was not retarded.

Judge Eisele made his rulings after appellant and the State of Arkansas presented a voluminous amount of evidence bearing on appellant's mental history and evaluations offered through witnesses, including psychiatrists. His memorandum opinion setting out the underpinnings of his rulings covers seventy-eight pages. The Eighth Circuit reviewed Judge Eisele's findings and affirmed them in a decision handed down on November 10, 1992. Fairchild v. Lockhart, 979 F.2d 636 (8th Cir.1992), cert. denied, 113 S.Ct. 3051, 111 S.Ct. 21, 111 L.Ed.2d 833 (1990). Accordingly, we hold appellant cannot reassert the issue of his mental retardation and is precluded from doing so under the doctrine of collateral estoppel. Ashe v. Swenson, Warden, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); National Farmers Union Standard Insurance v. Morgan, 966 F.2d 1250 (8th Cir.1992); see generally Judgments, 50 C.J.S. § 754(a), p. 267 (1947).

Appellant seeks relief based upon Act 420 of 1993 which bans the execution of a person who is mentally retarded only when a jury unanimously determines that the person was mentally retarded at the time of the murder. Based upon our analysis above, such Act simply does not apply here because appellant is not mentally retarded. ¹ We note the same definition of mental retardation contained in Act 420 was the definition used by Judge Eisele in reaching his decision pertaining to appellant's mental state. In addition, because appellant emphasizes to some extent in his contention that his I.Q. was in the low 60's in 1983, we further note that Judge Eisele specifically rejected appellant's contention in this respect, and opined the best tests, administered under optimal circumstances, would yield an I.Q. for appellant somewhere between 75 and 87.

NEWBERN, Justice, dissenting.

Counsel for Barry Lee Fairchild have asked that we stay his execution long enough to consider whether the execution would constitute cruel or unusual punishment as proscribed by Ark. Const. art. 2, § 9. Their theory is that Act 420 of 1993, by prohibiting executions of retarded persons, has brought into question whether execution of Mr. Fairchild would be prohibited by our Constitution. They also cite a survey showing that a majority of Arkansas citizens oppose execution of retarded persons. They ask that the execution, which is set for September 22, 1993, be stayed long enough to allow them to address on appeal the constitutional issue which was presented earlier to the Jefferson County Circuit Court which rejected their contention.

My colleagues choose to deny the stay on the ground that there has been a decision that Mr. Fairchild is not retarded, and thus the policy of Act 420 does not apply to him. They are applying the doctrine of collateral estoppel. I do not believe the doctrine applies in this case, and I conclude there has been no decision on that matter binding in the circumstances of the appeal counsel wish us to consider.

In Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989), the Georgia Supreme Court was faced with a situation much like the one before us now. The Georgia legislature had passed an act like Act 420 subsequent to the trial and sentencing of Fleming. The Georgia Supreme Court, applying the Georgia Constitution, concluded that the execution of a retarded person would constitute cruel and unusual punishment, and the case was sent back to a trial court for a determination whether Fleming was retarded. The difference between the Fleming case and the one now before us is that the United States District Court for the Eastern District of Arkansas concluded that Fairchild was not retarded. Fairchild v. Lockhart, 744 F.Supp. 1429 (E.D.Ark.1989). The Georgia Supreme Court had no such ruling before it in the Fleming case. If the decision of the Federal Court that Fairchild is not retarded is conclusive and binding on us, then the majority is correct in refusing to grant the stay, but that depends on application of the doctrine of collateral estoppel. Were it not for the application of that doctrine and the majority's conclusion that we are bound by the Federal Court decision, I feel sure the stay would be granted.

Counsel for Mr. Norris correctly assert that the doctrine of collateral estoppel had four elements, each of which must be satisfied. The elements are:

1. The issue must be the same as that involved in a prior litigation.

2. The issue must have been actually litigated.

3. The issue must have been determined by a valid and final judgment.

4. The determination must have been essential to the judgment.

See East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456

(1986); Lovell v. Mixon, 719 F.2d 1373 (8th Cir.1983).

When the Federal Court considered the question whether Mr. Fairchild was retarded it was for the purpose of determining whether he had the capacity to waive his right not to incriminate himself after having been informed of that...