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August 28, 1986

Eugene Wallace Perry
A. L. Lockhart, Director Arkansas Department of Correction

The opinion of the court was delivered by: EISELE

 GARNETT THOMAS EISELE, United States District Judge.

 The Court has previously affirmed the petitioner's capital murder conviction and denied all of his habeas corpus claims except that dealing with the so called " Collins issue." It thus remains for the Court to rule upon this lone outstanding issue regarding the validity of the death sentence imposed upon petitioner.

 By another order entered this day in the case of Singleton v. Lockhart, 653 F. Supp. 1114 (D.C. Ark. 1989), the Court has analyzed at some length the Eighth Circuit decision in Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985). It is the Court's conclusion that Collins controls this case as well as Singleton and requires the Court to find that the death sentence imposed on this petitioner is defective.

 Eugene Wallace Perry was convicted in 1981 of capital felony murder under the appropriate Arkansas statute. ┬ž 41-1501(a). *fn1" As was the case with Singleton and Collins, the underlying felony for Perry's conviction was robbery. After convicting Perry, the jury then heard evidence of aggravating and mitigating circumstances in order to determine whether it would sentence the petitioner to life without parole or to death.

 During the sentencing phase, the prosecutor put into evidence documentation of a 1975 Alabama conviction of Perry for armed robbery. The defendant offered no evidence of any mitigating circumstances. Before the jury, the prosecutor argued that there were two aggravating circumstances to justify imposition of the death sentence. In addition to the prior violent crime, supported by the evidence of the 1975 Alabama conviction, the prosecutor argued "pecuniary gain:"

"Now in this case there are two aggravating circumstances. One, previous felony conviction of robbery in 1975 where he got ten years for it. He is back out here committing another one in September of '80. And two, pecuniary gain. Well obviously we have got pecuniary gain in this thing, because you have got a hundred thousand dollar loss of jewelry."
[T. at 3253]

 The jury found that both of these aggravating circumstances existed beyond a reasonable doubt; that there were no mitigating circumstances; that the aggravating circumstances justified imposition of the death sentence; and that Perry should be executed.

 The prosecutor's presumption that the pecuniary gain circumstance had to be obvious to the jury, since the jurors had already found that the defendant committed robbery, goes to the heart of the Collins holding. Collins precludes the use of the "pecuniary gain" aggravating circumstance when the capital felony conviction itself entails pecuniary gain as an essential element of the crime. Collins at 264. Because Perry was convicted of robbery murder, the fact of pecuniary gain is automatically established with the conviction. Subsequently offering it as one of two aggravating circumstances that allegedly indicate to the jury that this particular robbery murder warrants a death sentence ignores the fact that all robbery murders involve pecuniary gain. Thus, this aggravating circumstance does not serve the purpose of distinguishing some robbery murders from others. The result, as articulated by the Eighth Circuit in Collins, is that the imposition of the death sentence will not satisfy constitutional requirements:

Aggravating circumstances, in order to comply with the Eighth Amendment, must "genuinely narrow the class of persons eligible for the death penalty and . . . reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." [quoting Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 2742-43, 77 L. Ed. 2d 235 (1983)]. An aggravating circumstance is an objective criterion that can be used to distinguish a particular defendant on whom the jury has decided to impose the death sentence from other defendants who have committed the same underlying capital crime. Aggravating circumstances serve to reduce the danger that the death penalty will be wantonly or arbitrarily imposed, a danger that was uppermost in the Court's mind when Furman v. Georgia, [408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)] [citation omitted] was decided. Thus, in Godfrey the court struck down an aggravating circumstance that was so vaguely and generally worded that it failed to narrow the class of persons eligible for the death penalty.
* * *
. . . An aggravating circumstance which merely repeats an element of the underlying crime cannot perform this narrowing function. . . . Therefore, the pecuniary gain aggravating circumstance cannot be a factor that distinguishes some robber murderers from others. Collins at 263-264.

 Pecuniary gain was one of the two aggravating circumstances found by the jury in Perry's case. Since there is no way to discern the relative impact of this circumstance upon the jurors' ultimate decision to execute the petitioner, invalidating the use of pecuniary gain in ...

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