Fretwell v. Norris, 96-2806

• Decision Date: 05 March 1998
• Docket Number: No. 96-2806,96-2806
• Citation: 133 F.3d 621,1998 WL 3583
• Parties: Bobby Ray FRETWELL, Petitioner-Appellee, v. Larry NORRIS, Director, Arkansas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 621

133 F.3d 621

Bobby Ray FRETWELL, Petitioner-Appellee, v. Larry NORRIS, Director, Arkansas Department of Corrections Respondent-Appellant.

No. 96-2806.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1997.

Decided Jan. 7, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied March

5, 1998. ^*

Darnisa Evans Johnson, AAG, Little Rock, AR, argued, for Respondent-Appellant.

Deborah R. Sallings, Roland, AR, argued, for Petitioner-Appellee.

Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

The State of Arkansas appeals the grant of federal habeas relief setting aside Bobby Ray Fretwell's death sentence. The State raises a single issue, whether the district court erred in concluding that Fretwell's trial counsel provided ineffective assistance at the penalty phase by not investigating and presenting testimony by Fretwell's mother and siblings concerning the physical and mental abuse Fretwell suffered at the hands of his father as a child. Concluding that counsel's performance did not fall below the standard of constitutional reasonableness articulated in Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 2064-67, 80 L.Ed.2d 674 (1984), we reverse.

I. Procedural Background.

In August 1985, a jury convicted Fretwell of capital murder for shooting Sherman Sullins during an armed robbery. After trial of the penalty issue, the jury sentenced Fretwell to death, finding no mitigating factors and one aggravating factor, murder for pecuniary gain. See ARK.CODE ANN. § 5-4-604(6) (Michie 1995). The Arkansas Supreme Court affirmed, Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), and later rejected Fretwell's petition for post-conviction relief. Regarding the issue now before us, the Court explained:

Although petitioner states that family members were available to testify and he states that he was not aware that he would take the stand until after the trial began, he does not state what the family members' testimony would have been or how his testimony would have been different if he had known in advance that he would be called to testify. When a petitioner fails to provide a summary of the testimony which could have been given and does not explain why the testimony was important, there is no basis for a finding that counsel was ineffective.

Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180, 183 (1987).

In 1987, Fretwell filed this petition for federal habeas relief. After lengthy delays, the district court denied Fretwell's challenge to the guilt phase of his trial, granted sentencing relief on another ground, and did not reach the ineffective assistance issue now before us. Fretwell v. Lockhart, 739 F.Supp 1334, 1337 (E.D.Ark.1990). A divided panel of this court affirmed, Fretwell v. Lockhart, 946 F.2d 571 (8th Cir.1991), but the Supreme Court reversed, Lockhart v. Fretwell, 506 U.S. 364, 366, 113 S.Ct. 838, 841, 122 L.Ed.2d 180 (1993), and we remanded to the district court for consideration of unresolved issues.

On remand, the district court held an evidentiary hearing, which gave Fretwell an opportunity to cure his factual default in state court. ¹ Fretwell and his mother, sister, and two brothers testified to appalling physical and mental abuse inflicted upon Fretwell as a child by his father, who died after Fretwell's trial but before this hearing. Family members also testified that they would have risked the father's wrath by testifying to this abuse had counsel called them as witnesses during the penalty phase of the trial. The district court granted relief on this ground, concluding that Fretwell's trial counsel provided constitutionally ineffective assistance during the penalty phase by not interviewing these family members and then presenting their graphic testimony of abuse to the jury. The court acknowledged that counsel presented this mitigating circumstance through testimony by Fretwell and a defense expert, psychologist Douglas Stevens. However, the court concluded that counsel's deficient performance was prejudicial because Fretwell's testimony was presented without adequate preparation and Dr. Stevens's testimony "was not as compelling as it should have been."

The State appeals, arguing that Fretwell failed to satisfy either prong of Strickland 's ineffective assistance standard--constitutionally deficient performance and prejudice. Fretwell has cross-appealed, challenging the district court's denial of relief on his other unresolved claims. Another panel of this court denied Fretwell a certificate of appealability on his cross appeal. Fretwell v. Norris, No. 96-3193 (8th Cir. Dec. 31, 1997). Thus, we consider only the State's appeal. The actions of both panels result in a remand with directions to deny Fretwell's petition for habeas relief.

II. Framing the Ineffective Assistance Inquiry.

We will address only Strickland 's first prong, whether trial counsel performed so deficiently "that counsel was not functioning as the 'counsel' guaranteed [Fretwell] by the Sixth Amendment." 466 U.S. at 687, 104 S.Ct. at 2064. ² In addressing that question,

"[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."

466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). The district court lost sight of this critical admonition, which is perhaps not surprising given the way the evidentiary hearing progressed. Fretwell first presented his side of the ineffective assistance question but did not call trial counsel as a witness. The State called counsel as its only witness. The trial had taken place nine years earlier, and counsel's files were later destroyed in a flood. Yet counsel testified at the hearing without reviewing the extensive state court record, which is part of our record on appeal. Because he was unprepared, counsel was unable to explain, or even recall, the reasons underlying much of his performance before and during trial. The district court repeatedly used counsel's inability to recall as establishing lack of competent performance. This violates the presumption that attorneys perform reasonably:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Brant v. Nix, 58 F.3d 346 (8th Cir.1995). To nullify the distorting effects of hindsight, and to give this presumption its full weight, we will examine counsel's trial tactics and strategy as revealed by the state court record because that record best reflects "counsel's perspective at the time."

III. The Crime and the Trial.

Fretwell, his wife, and a third accomplice left Springtown, Texas, in a stolen truck on April 27, 1985. They stole a pistol and shells at a filling station in Texas and a second truck in Clinton, Arkansas. When that truck broke down on April 28 in Marshall, a town in northern Arkansas, the trio discussed robbing and killing a filling station attendant. Fretwell awoke early the next morning. The filling station was closed, so he approached the home of Sherman Sullins, where a truck was parked in the driveway. Fretwell knocked on the door and asked the unsuspecting Sullins for assistance. Sullins invited him in. Fretwell drew his pistol, robbed Sullins of his money and truck keys, and knocked the elderly Sullins down with a blow to the head. When Sullins arose, Fretwell shot him in the head at close range. The three bandits fled in Sullins's truck, continuing their crime spree until arrested in Wyoming in early May.

When arrested, Fretwell was in possession of the pistol and Sullins's truck. While in Wyoming, he gave two taped confessions to the Sullins murder. The first interview was conducted by a Wyoming county attorney, the second by a sergeant with the Arkansas State Police. Facing capital murder charges, Fretwell's two accomplices offered to testify against him at his trial.

Counsel was appointed after Fretwell made the two confessions, waived extradition to Arkansas, was charged with capital murder, and faced a trial in Sullins's home town. Counsel first entered a plea of not guilty by reason of insanity. That defense was abandoned when both the state hospital and Dr. Stevens examined Fretwell and opined that he was competent at the time of the murder. Counsel then moved to suppress Fretwell's confessions on the ground that Fretwell had not knowingly waived his Miranda rights. The court deferred ruling on that motion until the eve of trial, when Wyoming law enforcers would be available to testify at a suppression hearing. Correctly perceiving that the motion would not succeed, counsel persuaded Fretwell that he should tender a plea of guilty to the court, because under Arkansas law such a plea, if accepted, spares a defendant from the death penalty. ³

The problem with counsel's plea strategy was that Arkansas law requires prosecutor consent to such a plea. Fretwell's prosecutor would not agree because he was seeking the death penalty. Defense counsel nonetheless persisted, first tendering a guilty plea that the trial court refused; then offering to stipulate away the guilt phase of the trial, which the prosecutor and court also refused; and finally...