Fretwell v. Lockhart

• Citation: 946 F.2d 571
• Decision Date: 23 September 1991
• Docket Number: Nos. 90-2105,90-2315,s. 90-2105
• Parties: Bobby Ray FRETWELL, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellant. Bobby Ray FRETWELL, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 571

946 F.2d 571

Bobby Ray FRETWELL, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Corrections,

Appellant.

Bobby Ray FRETWELL, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.

Nos. 90-2105, 90-2315.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 7, 1991.

Decided Sept. 23, 1991.

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

Richard R. Medlock, Little Rock, Ark., for appellee.

Before LAY, Chief Judge, and MAGILL and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

A.L. Lockhart, Director of the Arkansas Department of Correction, appeals the district court's grant of habeas corpus relief to Bobby Ray Fretwell on the ground that Fretwell had received ineffective assistance of counsel at his capital felony murder trial. Fretwell cross-appeals, raising other claims of ineffective assistance of counsel. We affirm the district court's decision in part and remand for further proceedings consistent with this opinion.

I.

In August 1985, Fretwell was tried and convicted of capital felony murder in Searcy County, Arkansas. The jury found that Fretwell had murdered Sherman Sullins in the course of a robbery. ¹ At a separate sentencing hearing, ² the state argued that the evidence admitted during the guilt phase of Fretwell's trial established the following two aggravating circumstances: that the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody; and that the capital felony was committed for purposes of pecuniary gain. Fretwell's attorney argued that these allegations did not constitute valid aggravating circumstances and that Fretwell's difficult and disadvantaged childhood constituted a mitigating factor. The trial court instructed the jury on the two aggravating circumstances requested by the state. Fretwell's attorney did not object. The trial court also instructed the jury on the one mitigating circumstance raised by Fretwell's attorney. The jury found that only the pecuniary gain aggravating circumstance was present and that there were no mitigating circumstances. Based on these findings, the jury concluded that Fretwell's punishment should be death.

Fretwell's conviction and sentence were affirmed on direct appeal in 1986 by the Arkansas Supreme Court. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Fretwell's collateral attacks in state courts on his conviction and sentence were unsuccessful. Fretwell then filed a habeas petition in federal district court, claiming that the trial court erred in refusing to set aside the jury's verdict as being contrary to the evidence and that he received ineffective assistance of counsel. Fretwell argued that his counsel was ineffective because counsel failed to object to the aggravating circumstances jury instructions; because counsel failed to prepare and present evidence at the suppression hearing on Fretwell's confession; because counsel argued for an erroneously-worded jury instruction on the lesser included offense of first degree murder; and because counsel failed to investigate or prepare for the sentencing phase. The district court held that Fretwell was procedurally barred from raising his first claim and rejected two of the ineffective assistance of counsel claims, but granted relief on the claim that trial counsel was ineffective because he failed to object to the jury instructions on aggravating circumstances. ³ The district court noted that seven months before Fretwell's trial, the Eighth Circuit had held that the Constitution is violated when a trial court uses pecuniary gain as an aggravating circumstance in robbery/murder cases because such double counting does not genuinely narrow the class of persons eligible for the death penalty. See Collins v. Lockhart, 754 F.2d 258, 263-64 (8th Cir.1985). The district court then held that under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Fretwell's counsel was ineffective. First, the district court held that Fretwell's counsel violated his duty to be aware of all law relevant to Fretwell's death penalty case. It further held that the error was prejudicial under Strickland because the jury found only one aggravating circumstance, that Fretwell had committed the murder for pecuniary gain. The district court stated that it was confident that, had Fretwell's counsel objected, the trial court would have followed Collins and thus would not have issued the pecuniary gain instruction. Consequently, the jury would have found no aggravating circumstances and it would have had no choice but to sentence Fretwell to life imprisonment without parole. Having held that Fretwell's trial counsel was ineffective, the district court granted habeas relief, conditionally vacating Fretwell's death sentence. The district court gave the State of Arkansas the option to conduct another sentencing hearing within ninety days. If no such hearing were held, the district court ordered that Fretwell's sentence be permanently reduced to life imprisonment without the possibility of parole. Lockhart appeals this decision and has received a temporary stay of the tolling of the ninety-day period while we resolve this appeal. Fretwell cross-appeals the district court's dismissal of his other ineffectiveness claims, requesting that his sentence be unconditionally reduced to life imprisonment without parole, or in the alternative that he be resentenced under the law that was in effect at the time of his first trial.

II.

Lockhart argues on appeal that Fretwell was not denied effective assistance of counsel by his counsel's failure to make an objection based on Collins to the pecuniary gain instruction. Lockhart argues that even if Fretwell's attorney had objected to the pecuniary gain instruction, the trial court would probably have overruled the objection because Collins was a "lawless" decision. Lockhart contends that Collins was clearly inconsistent with the Supreme Court's decisions in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and therefore lacked any precedential value. As evidence of the "lawless" nature of the Collins decision, Lockhart cites a later Supreme Court decision permitting the use of an element of a capital crime as an aggravating circumstance in the sentencing phase, see Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), and this court's subsequent decision to overrule Collins, see Perry v. Lockhart, 871 F.2d 1384 (8th Cir.1989). Fretwell argues that the trial court would have sustained a Collins objection had Fretwell's counsel raised the issue because Collins was good law at the time of his trial.

Since all the claims Fretwell raises on appeal involve his right to effective assistance of counsel, we begin our analysis with the standard set by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, an ineffective assistance of counsel claim will succeed only if (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced petitioner's defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The district court found that the performance of Fretwell's trial counsel was deficient because he was ignorant of Collins. Lockhart does not challenge this finding, nor do we. Therefore, the only question is whether this deficient performance prejudiced Fretwell's defense.

Lockhart claims that, at the time of Fretwell's trial, the Supreme Court case law would have led the trial court to overrule a Collins objection. We disagree. In Jurek, the Supreme Court considered whether the legislature could narrow the class of individuals eligible for the death penalty at the guilt phase instead of at the sentencing phase. Jurek involved a capital sentencing scheme that requires a court to conduct a separate sentencing proceeding after a defendant is convicted of a capital offense. Jurek, 428 U.S. at 267, 96 S.Ct. at 2954. During this punishment phase, both parties can present evidence and make arguments regarding the appropriate sentence. At the conclusion of the sentencing proceeding, the trial court must present the jury with questions ⁴ which, if answered in the affirmative, mandate the imposition of the death penalty. Id. The Supreme Court reasoned that these questions allow the jury to consider mitigating circumstances that might militate against imposing the death penalty. Since the Texas capital sentencing scheme requires the jury to find at least one aggravating circumstance in the guilt phase and allows the jury to consider mitigating circumstances in the sentencing phase, the Supreme Court held that the scheme was constitutional. ⁵ Id. at 276, 96 S.Ct. at 2958.

The question before the Court in Jurek was whether the state legislature could narrow the class of individuals eligible for the death penalty at the guilt phase by narrowing its definition of capital murder. The Court held that such narrowing is permissible. Id. at 276, 96 S.Ct. at 2958. Lockhart argues that Jurek permitted Arkansas to accomplish the requisite narrowing by including the aggravating circumstance of pecuniary gain at the guilt phase. He argues that the statutory requirement that the jury find at least one aggravating circumstance in the sentencing phase is superfluous and does not obviate the narrowing that was already performed in the guilt phase. Lockhart's reliance upon Jurek is misplaced. The Court in Jurek did not address the question of whether a state can use the same aggravating circumstance in both the guilt phase and the sentencing phase. That question was resolved by the Supreme Court in Lowenfield, which was decided more than three years after Fretwell's trial. See Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555. Furthermore, the capital...