Fairchild v. Norris

• Decision Date: 31 May 1994
• Docket Number: No. 93-975,93-975
• Citation: 317 Ark. 166,876 S.W.2d 588
• Parties: Barry Lee FAIRCHILD, Appellant, v. Larry NORRIS, Acting Director, Arkansas Department of Correction, Appellee.
• Court: Arkansas Supreme Court

Page 588

876 S.W.2d 588

317 Ark. 166

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

No. 93-975.

Supreme Court of Arkansas.

May 31, 1994.

Herbert C. Rule III, Charles W. Baker and P.A. Hollingsworth, Little Rock, Elaine R. Jones, Richard H. Burr and Steven W. Hawkins, New York City, for appellant.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

Appellant Barry Lee Fairchild was convicted in 1983 of the capital murder of Marjorie Mason and was sentenced to death. We affirmed his conviction. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985); Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). For some eight years following Fairchild's conviction, a number of proceedings occupied the attention of the United States District Court of the Eastern District of Arkansas and the Eighth Circuit Court of Appeals. Fairchild v. Lockhart, 675 F.Supp. 469 (E.D.Ark.1987); 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 v. Lockhart, 744 F.Supp. 1429 (E.D.Ark.1989); Fairchild v. Lockhart, 900 F.2d 1292 (8th Cir.1990), cert. denied 497 U.S. 1052, 111 S.Ct. 21, 111 L.Ed.2d 833 (1990); Fairchild v. Lockhart, 979 F.2d 636 (8th Cir.1992), cert. denied 509 U.S. 928, 113 S.Ct. 3051, 125 L.Ed.2d 735 (1993).

On June 30, 1993, Fairchild unsuccessfully petitioned the Jefferson County Circuit Court for a writ of habeas corpus, or in the alternative, for a declaratory judgment pursuant to Ark.Code § 16-111-101, et seq., the central issue being whether or not, under the state and federal constitutions, petitioner is ineligible for the death penalty, given that Act 420 of 1993, a newly passed state statute, prohibits the execution of the mentally retarded. The record of trial contains a history of prior proceedings, including a survey of Arkansans' opinions on capital punishment; transcripts of Fairchild's Pulaski County Special School District records, both elementary and high school; forensic and intellectual evaluations; an evaluation report from the Johnson Center for Psychological Testing; together with extensive briefs in support of the habeas corpus petition. Based on these materials, the trial court, on July 28, 1993, denied the petition for writ of habeas corpus with a further finding that the passage of Act 420 of 1993 affords this petitioner "no basis for his relief" and "that a hearing is unnecessary as [to] his petition for declaratory judgment," and as such, it was denied.

Subsequently, Fairchild filed a notice of appeal to this court in the Jefferson County Circuit Court from the order denying him declaratory relief. On September 7, 1993, the record of the Jefferson County Circuit Court proceeding was filed with the Arkansas Supreme Court Clerk. At this time, Fairchild was scheduled for execution on September 22, 1993.

On September 10, 1993, prior to the filing of the briefs in this appeal, Fairchild filed a motion for stay of execution with this court, predicated on the central issue of his appeal: whether or not, under the state and federal constitutions, he was ineligible for the death penalty in light of Act 420's prohibition of the execution of the mentally retarded. Fairchild supported this motion with essentially the same briefs and materials provided to the trial court in his petition for declaratory judgment.

During the pendency of this motion, application was made by ARC of Arkansas (formerly, the Association for Retarded Citizens of Arkansas) and individual citizens, to file an amici curiae brief in support of Fairchild's position, which was granted. Following submission of complete briefs on all critical issues from the parties and an oral argument on September 19, 1993, we denied the motion for stay of execution. Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993). In our per curiam opinion, dated September 20, 1993, we noted that United States District Judge G. Thomas Eisele in Fairchild v. Lockhart, 744 F.Supp. at 1461 (E.D.Ark.1989), after considering a voluminous amount of evidence presented by both parties bearing on Fairchild's mental history, had ruled in a seventy-eight-page opinion that Fairchild was not retarded. We also recognized that the United States Eighth Circuit Court of Appeals had reviewed Judge Eisele's findings and affirmed them in Fairchild v. Lockhart, 979 F.2d 636 (8th Cir.1992), cert. denied 497 U.S. 1052, 111 S.Ct. 21, 111 L.Ed.2d 834 (1990). As a result, we held that Fairchild could not reassert the issue of his mental retardation and was precluded from doing so under the doctrine of collateral estoppel. Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993).

Fairchild did not challenge the court's decision by petitioning the Supreme Court for writ of certiorari. Instead, he chose to file a petition for writ of habeas corpus with the United States District Court. On September 22, 1993, two days after we handed down our per curiam, Judge Eisele granted Fairchild federal habeas relief, directing that Fairchild's sentence be changed to life in prison without parole. The District Court found that the evidence presently against Fairchild at trial was legally insufficient to justify the death penalty. Fairchild v. Norris, No. PB-85-262 (E.D.Ark. September 22, 1993) (see also Addendum to Mem. Op., E.D.Ark. September 24, 1993). On April 8, 1994, the United States Court of Appeals for the Eighth Circuit reversed the District Court's holding and remanded it with directions to dismiss Fairchild's petition, explaining that Fairchild had not proven by clear and convincing evidence that, but for a constitutional error, no reasonable juror could have found him eligible for the death penalty. Instead, the Court of Appeals explained, the evidence at trial was sufficient for a reasonable juror to find that Fairchild was a major participant in the felonies and that he acted with reckless indifference to human life, resulting in Ms. Mason's death. Fairchild v. Norris, 21 F.3d 799 (8th Cir.1994).

Following his unsuccessful attempt to obtain a stay of execution from our court in late September of 1993, Fairchild has attempted to continue his appeal from the Jefferson County Circuit Court's decision by reasserting the same issues he presented earlier in his motion to stay execution. Fairchild's briefs, as well as recent oral arguments in support of the briefs by his counsel, are, with little exception, the same arguments presented in his quest for a stay of execution. These include his contention that, in light of the passage of Act 420 of 1993 ("An Act to Prohibit the Sentencing of a Mentally Retarded Defendant to Death"), his execution would: (1) violate state and federal guarantees against the imposition of cruel and unusual punishment; (2) render a disproportionate sentence as between him and other retarded individuals; and (3) violate his due process rights. He also argues that even though the United States District Court has held that he is not retarded, collateral estoppel does not apply, and he is entitled to an evidentiary hearing if there is any dispute as to whether he meets the statutory presumption established by Act 420.

As we noted earlier, the oral arguments of the parties and the briefs in support of the motion for stay of execution and of this request for relief are the same--even the attachments to the briefs are identical. Thus, it is obvious that Fairchild has twice presented the same issues to this court in this appeal: first, through his motion for stay and, now, in this proceeding.

When Fairchild requested a stay of execution after lodging his appeal in this court on September 7, 1993, he was well aware that his appeal would be effectively ended if this court refused that stay request. As previously mentioned, Fairchild's execution was scheduled for 9:00 p.m. on September 22, 1993, and therefore, this court expedited the filing of briefs and then scheduled oral argument which was heard on September 27, 1993. Realizing the practical finality of his appeal which would result if this court denied his stay request, Fairchild was permitted, without objection, to argue all issues he had raised before the Jefferson County Circuit Court. Fairchild now tries to reassert these same issues in this same appeal. In effect, Fairchild's present reassertions amount to a belated petition for rehearing on this court's September 20, 1993, per curiam decision.

For these reasons, we apply the doctrine of law of the case and consider these issues no further. We have recently held that the doctrine of law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993). See Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993); see also Housing Authority of NLR v. Green, 241 Ark. 47, 406 S.W.2d 139 (1966). However, the doctrine of law of the case is not limited to issues raised in prior appeals as the doctrine was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit which is the situation we have before us. See 18 Wright, Miller and Cooper, Federal Practice & Procedure § 4478 (1981). As stated by Justices Holmes in Messinger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912), the law of the case "merely expresses the practice of courts generally to refuse to reopen what has been decided." Messenger, 225 U.S. at 444, 32 S.Ct. at 740. This doctrine applies to issues of constitutional law. Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976), cert. denied 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1977). Here, there was no material variance between these two proceedings apart from the...