Fairchild v. Lockhart

• Decision Date: 11 September 1987
• Docket Number: No. PB-C-85-282.,PB-C-85-282.
• Citation: 675 F. Supp. 469
• Parties: Barry Lee FAIRCHILD, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

675 F. Supp. 469

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

No. PB-C-85-282.

United States District Court, E.D. Arkansas, Pine Bluff Division.

September 11, 1987.

John Wesley Hall, Jr., Little Rock, Ark., for petitioner.

Jack Gillean, Office of Attorney General State of Ark., Little Rock, Ark., for respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

EISELE, Chief Judge.

Petitioner seeks habeas corpus relief following his conviction for the capital murder and rape of Ms. Marjorie Mason on February 26, 1983. He was arrested on March 4, 1983, and on March 5, 1983, he was charged with such crimes by felony information in Lonoke County. Confessions were elicited during interrogation following petitioner's arrest purportedly on an unrelated Pulaski County charge of attempted murder of a police officer. The Lonoke County murder and rape information was later amended to add kidnapping and aggravated robbery as felonies underlying the capital murder charge. On August 2, 1983, a jury found petitioner guilty on the Lonoke County charges and sentenced him to death. In September 1983, petitioner pled guilty to charges of aggravated robbery in Pulaski County and was sentenced to twenty-five years imprisonment, said sentence to be concurrent with the sentence in the Lonoke County case.

Petitioner appealed his conviction and death sentence to the Arkansas Supreme Court, which affirmed both the judgment and the sentence. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). The United States Supreme Court denied certiorari. Fairchild v. Arkansas, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985). Petitioner sought and was denied post-conviction relief under Ark.R.Crim.P. 37.1. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). Having conducted an evidentiary hearing on March 23 and 24, 1987, and having considered the briefs and argument of the parties, the Court now makes its factual findings and states its legal conclusions as follows.

FINDINGS OF FACT

I. The Oberle Investigation and Warrant.

On December 28, 1982, Mr. D.S. Blound, a deputy prosecuting attorney, assigned to the Little Rock Police Department, signed an information charging petitioner Barry Fairchild with the crime of attempted capital felony murder allegedly occurring on or about December 23, 1982, "committed by unlawfully firing a weapon at Ofc. Joe Oberle, of the Little Rock Police Department, with the intent to kill, while Ofc. Oberle was attempting to detain him." The witnesses listed on the information were Detective Sylvester and Officer Oberle of the Little Rock Police Department. Officer Mike Sylvester swore that the allegations contained in the information were the truth, the whole truth and nothing but the truth. His signature was subscribed and sworn to before Michele Boyd, Chief Clerk of the Criminal Division of the Municipal Court on December 28, 1982. On the basis of the information and the affidavit sworn to by Officer Sylvester, Ms. Boyd issued a warrant for the arrest of Barry Fairchild. No additional facts or information were presented to Ms. Boyd. The municipal judge had theretofore delegated to the Clerk's Office the power to issue warrants under Arkansas law. As Ms. Boyd testified, when the prosecuting attorney causes such an information to be filed as attested, the Clerk accepts same and automatically issues a warrant, making no independent determination of probable cause or of the factual basis for the filing of the charge. If the felony information is so filed, the Clerk's office presumes that it has been issued upon probable cause. Ms. Boyd testified that to her recollection the practice has been followed at least since the 1970s.

Officer Mike Sylvester has been with the Little Rock Police Department for some 15 years. In 1982 he was a detective in the Homicide Division. He investigated the assault on Officer Oberle. Officer Oberle, a patrol officer, had been assigned to investigate a robbery of an individual at the Circle "B" restaurant on Roosevelt Avenue. He talked to the victim, one Roy Roberts, about 3:30 a.m. on December 23, 1982. Mr. Roberts told him he had been robbed by two black males in their 20s. Officer Oberle found the vehicle in which the robbers had fled a short distance away. When he approached the car, two black males jumped out and he was fired upon. Officer Sylvester's investigation identified the vehicle, determined the owner and the possible identity of the driver. Officer Oberle reviewed a photo spread and identified Harold Green as one of the robbers. Officer Sylvester was told by Officer Ivan Jones of the Little Rock Police Department that the latter had information from a confidential informant that petitioner Barry Fairchild was the other robber. Jones did not reveal to Sylvester the source of his information, but indicated that the source was generally reliable. Officer Oberle told Officer Sylvester that possibly three shots were fired, but he was not sure if they were fired by one or both of the robbers. The victim identified Mr. Green. Fairchild was not charged for the robbery itself.

The warrant obtained by Officer Sylvester was turned over for service to the appropriate office in the Little Rock Police Department. Several efforts were made to locate Barry Fairchild and to execute the arrest warrant on him, but to no avail. Some of these efforts were undertaken before the murder of Marjorie Mason.

Subjectively, Mr. Dale Adams, deputy prosecuting attorney, Ms. Michele Boyd, Chief Municipal Clerk, Detective Sylvester, Detective Ivan Jones, the officials who later processed the arrest warrant issued by Ms. Boyd, and all police officers who attempted to execute that warrant (arresting Barry Fairchild) acted in the good faith belief in the legality of what each was doing. No one recognized that there were any legal deficiencies in any of the procedures being followed.

The issuance of arrest warrants by the clerk, whenever informations were filed by the prosecuting attorney or his deputies, was essentially a ministerial act in the view of the clerk. The Clerk was under the directions of the Municipal Court to issue such warrants upon such occasions. No one had informed the clerk that any independent probable cause hearing or determination was required of the Clerk. If and when an information was filed, the instructions were to issue the arrest warrant for the defendant designated in the information.

II. The Arrest at Russellville.

The petitioner, Barry Fairchild, knew the police were after him. He obtained a ride to Conway and then rode the bus to Russellville. The bus was stopped by police at Russellville but, for some unexplained reason, he was able to simply "walk away" from that scene. He then hid out in the woods in that area for several days. He would sleep during the daytime and roam around at night. On the night of March 3, 1983, at about 8:45 p.m., he went to the home of Mr. Pat Humphries who lived on North Detroit Street in Russellville. It was raining. Mr. Fairchild told Mr. Humphries, an elderly gentleman, that his car was broken down on the interstate which was only about a quarter-mile from the Humphries' residence. He stated that he needed a wrecker. As it turns out, Mr. Humphries' son and his son's girlfriend were in another room in the house. They had observed Mr. Fairchild approaching the house. They had heard on the radio about the search for Mr. Fairchild and the girl had apparently seen a photograph of Mr. Fairchild on the television. They "suspicioned" that Mr. Fairchild was in fact the person being sought by the police. The father called to his son to contact the wrecker service, but the son instead called the police and advised them not to come with their sirens on. Officer Ron Stobaugh was the first to arrive at the scene. He ran to the house and then tip-toed up on the porch and observed Mrs. Humphries looking through a telephone book and Mr. Humphries talking to a black man near the front door. Other officers were arriving by this time and going to both the front and the back of the house. Officer Stobaugh rushed into the house and grabbed Fairchild with his left hand and pulled him toward the front door. He had a gun in his right hand. Mr. Fairchild then started running out the front door where two more deputies grabbed at Mr. Fairchild. Mr. Fairchild was tripped, or simply stumbled, into the front yard, and Officer Stobaugh followed. The police had an attack dog near the front yard. The handler, believing Mr. Fairchild had an avenue of escape, directed the dog to attack Mr. Fairchild. The dog bit him on the scalp, and then firmly grabbed him on the side and held on. Mr. Fairchild was pushed over a car and handcuffed. The dog's handler then got the dog to let go. The dog did not attack Mr. Fairchild after he was handcuffed but only before he had been secured.

Mr. Fairchild was then placed in Officer Larry Dalton's unit and taken to the emergency room at St. Mary's Hospital in Russellville. His head wound, a laceration about three inches long, was treated and bandaged. Mr. Fairchild was then taken to the Pope County Jail, where he was booked and fingerprinted. Some of the dogs were at the jail but none of them attacked or bothered Fairchild. Officer Dalton testified that a Pulaski County deputy sheriff (whom he did not recognize), Officer Reynolds, and he were in the office with Fairchild. Officer Reynolds is now deceased. Dalton testified that the unidentified Pulaski County deputy interrogated Fairchild at this time, and that when Fairchild did not answer, the Pulaski County deputy slapped Fairchild and screamed in his face. The Court has some difficulty with Officer Dalton's testimony and is not satisfied as to its accuracy. Officer Dalton was later fired from the Russellville Police Department and appeared to have some animus as a result. Furthermore, he did not come forward with...