Fairchild v. Lockhart, s. 90-2438

• Decision Date: 30 December 1992
• Docket Number: Nos. 90-2438,91-2532,s. 90-2438
• Citation: 979 F.2d 636
• Parties: Barry Lee FAIRCHILD, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. Barry Lee FAIRCHILD, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 636

979 F.2d 636

Barry Lee FAIRCHILD, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction,

Appellee.

Barry Lee FAIRCHILD, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

Nos. 90-2438, 91-2532.

United States Court of Appeals,

Eighth Circuit.

Submitted April 14, 1992.

Decided Nov. 10, 1992.

Rehearing and Rehearing En Banc

Denied Dec. 30, 1992.

Richard H. Burr, New York City, argued, for appellant.

Jack Gillean, Asst. Atty. Gen., Little Rock, Ark., argued, for appellee.

Before ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

We have for review a third federal habeas appeal on the guilt phase of this capital murder conviction which occurred over nine years ago. The murder took place on February 26, 1983, in Arkansas. Appellant was apprehended on the night of March 4, 1983, and early in the morning of March 5 made two videotaped confessions. After the first confession and before the second, he led the sheriff's deputies on a tour, showing them where he and his accomplice abducted and killed their victim. On August 2, 1983, an Arkansas jury found him guilty and sentenced him to death. Petitioner elected to be executed by lethal injection rather than electrocution under Ark.Stat.Ann. § 41-1354 (Supp.1983). This third federal appeal brings into issue newly discovered evidence that these confessions were coerced and unreliable. We affirm the district court's ¹ fact finding and denial of the writ.

Barry Lee Fairchild was convicted and sentenced to death for the murder of Marjorie Mason, a navy nurse. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal, Fairchild v. State, 681 S.W.2d 380 (1984) (Fairchild argued, primarily, that the jury selection process was flawed, the trial was held in an improper venue, the Arkansas death penalty was unconstitutional, and certain photographs of the victim should not have been admitted into evidence), cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985). State post-conviction relief was also denied. Fairchild v. State, 690 S.W.2d 355 (1985) (Fairchild sought stay of execution and permission to proceed in circuit court for post-conviction relief). Fairchild then filed a first petition for writ of habeas corpus in federal district court. The district court denied the petition, Fairchild v. Lockhart, 675 F.Supp. 469 (E.D.Ark.1987) (Fairchild argued that he received ineffective assistance of counsel at trial because his attorney failed to challenge the legality of his arrest, and that his confessions were coerced and unreliable), and we affirmed. Fairchild v. Lockhart, 857 F.2d 1204 (8th Cir.1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989). Fairchild then filed a second petition for writ of habeas corpus which the district court again denied in a 137-page opinion. Fairchild v. Lockhart, 744 F.Supp. 1429 (1989) (Fairchild argued that he is mentally retarded, so that his waiver of his constitutional rights before his confessions was not knowing and voluntary, and Arkansas' failure to discover his retardation rendered its pretrial evaluation of his mental condition inadequate), aff'd, 900 F.2d 1292 (8th Cir.1990). After the district court dismissed his third petition on August 29, 1990, Fairchild appealed to this court and filed a motion to remand to the district court. We granted the motion to remand with directions to the district court to hold an evidentiary hearing on the issue of whether Fairchild's confessions were voluntary in view of certain alleged new evidence on coercion in the sheriff's office and to certify its findings of fact back to this court. Fairchild v. Lockhart, 912 F.2d 269 (8th Cir.1990). After a seventeen-day evidentiary hearing, the district court concluded that Fairchild was not entitled to habeas relief. Its findings of fact consisted of 133 pages of oral findings issued from the bench, a 413-page written order on the remaining factual and legal issues, and a 15-page memorandum of law regarding procedural issues. Fairchild v. Lockhart, No. PB-C-85-282 (E.D.Ark. June 4, 1991). These findings were certified to this court. Fairchild appeals several of the findings.

I.

We forego an extensive recitation of the facts because they have been amply set out in prior opinions. The district court found facts related to two constitutional claims during this latest extensive evidentiary hearing--whether Fairchild's confessions were coerced and unreliable and whether Fairchild has a valid Brady claim with regard to certain newly discovered evidence. We discuss Fairchild's assignment of error as to the court's findings on each claim in turn, providing the relevant facts as necessary.

A. Determination That Confession Was Voluntary

As a result of Fairchild's third habeas appeal, we remanded to the district court for an evidentiary hearing based on alleged newly discovered evidence supporting Fairchild's claim that his videotaped confessions, introduced at trial, were coerced and unreliable. ² At this hearing, the testimony of several men who claimed they were beaten and threatened by members of the Pulaski County sheriff's office in an attempt to extract a confession to the Mason murder was introduced. Fairchild also presented witnesses who claimed to have seen or heard others being beaten at the police station, or who claimed that suspects who had been beaten told them about the experience afterward. This evidence, according to Fairchild, shows that there was systematic abuse of suspects in the murder investigation and therefore proves that he was coerced into confessing and that his confessions were not reliable because the police told him what to say. Respondents, on the other hand, presented testimony by the sheriff and deputies of Pulaski County that they had not abused anyone.

The district court carefully considered all the testimony. The court concluded that most of the witnesses presented by Fairchild were not credible due to their demeanor, the numerous contradictions in their stories, ³ and the credible rebuttal evidence presented by respondent. The court found that only a few of the witnesses had probably been abused or intimidated in some manner. The court further found, for several reasons, that this evidence did not change its prior finding that Fairchild's confessions were voluntary. First, the evidence did not show that abuse and intimidation of suspects was systematic, i.e., not every suspect questioned about the murder was abused or intimidated. In fact, most were not. Second, the forms of abuse were generally dissimilar to those Fairchild claimed he had undergone. ⁴ Third, there was no direct evidence presented at the hearing that Fairchild had been forced to confess. ⁵

Fairchild argues that the district court erred in its findings of fact and its determinations of credibility on which they are based. We review findings of fact for clear error. Singleton v. Lockhart, 962 F.2d 1315, 1321 (8th Cir.1992). "Under Fed.R.Civ.P. 52(a), we may set aside findings as clearly erroneous if, after reviewing the entire record, we are 'left with the definite and firm conviction that a mistake has been committed.' " Maasen v. Lucier, 961 F.2d 717, 719 (8th Cir.1992) (citing Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). When findings of fact are based on determinations of credibility, we must accord them even greater deference. Id. After careful review of the record, we cannot say that the district court's findings are clearly erroneous.

Fairchild also argues that the district court's fact finding process was erroneous because it made credibility determinations focused on each individual witness instead of looking at the overall mosaic created by the evidence. This argument is fundamentally flawed. It is impossible for evidence that is not credible in itself to form an overall picture that is both credible and convincing. Fairchild is asking the court to add a group of negative numbers together and find that the sum is positive. The district court refused the invitation, and we will not accept it either. We affirm the district court's finding that Fairchild's confessions were voluntary and reliable. The evidence does not support any other conclusion.

B. Brady Claims

Fairchild claims that exculpatory evidence was not revealed to him by the prosecutor in violation of the rule set down in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The most troubling claim that Fairchild makes is that the prosecutor failed to reveal that there was evidence in the sheriff's office investigatory file that two people remembered that on the day of the murder the victim was wearing a gold metal watch very different from the one Fairchild gave his sister. ⁶

Respondent argues that this Brady claim is an abuse of the writ because it was never presented to any court prior to the evidentiary hearing on his third habeas petition. "The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus." McCleskey v. Zant, --- U.S. ----, ----, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). In order to overcome an abuse of the writ defense, a petitioner must show both cause for the default and prejudice resulting from it. Id. at ----, 111 S.Ct. at 1470. If a petitioner cannot show cause, he can still prevail if he can show that a fundamental miscarriage of justice has taken place. ⁷ Id. Fairchild claims that he has met both of these burdens. We disagree.

Fairchild has met the cause prong of the cause and prejudice test. "[T]he cause standard required the petitioner to show that 'some objective factor external to the defense impeded counsel's efforts' to raise the claim...." Id. (quoting Murray v. Carrier, 477...