Gay v. State, 012121 ARSC, CR-19-762

• Docket Nº: CR-19-762
• Opinion Judge: JOHN DAN KEMP, CHIEF JUSTICE
• Party Name: RANDY WILLIAM GAY APPELLANT v. STATE OF ARKANSAS APPELLEE
• Attorney: Fuqua Campbell, P.A., by: J. Blake Hendrix, for appellant. Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen.; and Rachel Kemp, Sr. Ass't Att'y Gen., for appellee.
• Judge Panel: Special Justice Tim Snively joins. Wood, J., not participating.
• Case Date: January 21, 2021
• Court: Supreme Court of Arkansas

2021 Ark. 3

RANDY WILLIAM GAY APPELLANT

v.

STATE OF ARKANSAS APPELLEE

No. CR-19-762

Supreme Court of Arkansas

January 21, 2021

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-11-428] HONORABLE JOHN HOMER WRIGHT, JUDGE

Fuqua Campbell, P.A., by: J. Blake Hendrix, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen.; and Rachel Kemp, Sr. Ass't Att'y Gen., for appellee.

JOHN DAN KEMP, CHIEF JUSTICE

Appellant Randy William Gay was convicted by a Garland County Circuit Court jury of capital murder and sentenced to death. This court affirmed his conviction and sentence. Gay v. State, 2016 Ark. 433, at 18, 506 S.W.3d 851, 863. Gay then filed a petition for postconviction relief in the circuit court pursuant to Rule 37.5 of the Arkansas Rules of Criminal Procedure. After a hearing, the circuit court denied the petition, and Gay now appeals that denial. For reversal, he asserts that (1) he was denied the right to a fair and impartial jury, (2) he received ineffective assistance of counsel for eight reasons, (3) Form 3 of the death-penalty jury instructions prohibited the jury from exercising mercy, (4) the sentence did not meet the statutory and constitutional requirements for imposing a death sentence, (5) the verdict forms were ambiguous, and (6) the prosecution improperly argued lack of remorse as a nonstatutory aggravating factor. We reverse and remand to the circuit court for entry of an order that complies with Rule 37.5(i).

Rule 37.5 sets out the postconviction procedures for death-penalty cases. See Fudge v. State, 354 Ark. 148, 151, 120 S.W.3d 600, 601 (2003). Subsection (i) provides in part that the circuit court shall "make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition." Ark. R. Crim. P. 37.5(i) (2020). This court has held that this provision imposes a "more exacting duty" on the circuit court than Arkansas Rule of Criminal Procedure 37.3(c), which governs postconviction procedures in non-death-penalty cases. Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 470 (2001). Under Rule 37.5(i), the petitioner determines the issues that must be addressed by the circuit court in a written order, while under Rule 37.3(c), the circuit court determines the issues and then makes specific written...