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September 11, 1987

Barry Lee Fairchild, Petitioner
A. L. Lockhart, Director, Arkansas Department of Correction, Respondent

The opinion of the court was delivered by: EISELE

 Garnett Thomas Eisele, United States District Judge

 Petitioner appealed his conviction and death sentence to the Arkansas Supreme Court, which affirmed both the judgment and the sentence. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). The United States Supreme Court denied certiorari. Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346, 85 L. Ed. 2d 862 (1985). Petitioner sought and was denied post-conviction relief under Ark.R.Crim.P. 37.1. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). Having conducted an evidentiary hearing on March 23 and 24, 1987, and having considered the briefs and argument of the parties, the Court now makes its factual findings and states its legal conclusions as follows.


 I. The Oberle Investigation and Warrant.

 On December 28, 1982, Mr. D.S. Blound, a deputy prosecuting attorney, assigned to the Little Rock Police Department, signed an information charging petitioner Barry Fairchild with the crime of attempted capital felony murder allegedly occurring on or about December 23, 1982, "committed by unlawfully firing a weapon at Ofc. Joe Oberle, of the Little Rock Police Department, with the intent to kill, while Ofc. Oberle was attempting to detain him." The witnesses listed on the information were Detective Sylvester and Officer Oberle of the Little Rock Police Department. Officer Mike Sylvester swore that the allegations contained in the information were the truth, the whole truth and nothing but the truth. His signature was subscribed and sworn to before Michele Boyd, Chief Clerk of the Criminal Division of the Municipal Court on December 28, 1982. On the basis of the information and the affidavit sworn to by Officer Sylvester, Ms. Boyd issued a warrant for the arrest of Barry Fairchild. No additional facts or information were presented to Ms. Boyd. The municipal judge had theretofore delegated to the Clerk's Office the power to issue warrants under Arkansas law. As Ms. Boyd testified, when the prosecuting attorney causes such an information to be filed as attested, the Clerk accepts same and automatically issues a warrant, making no independent determination of probable cause or of the factual basis for the filing of the charge. If the felony information is so filed, the Clerk's office presumes that it has been issued upon probable cause. Ms. Boyd testified that to her recollection the practice has been followed at least since the 1970s.

 Officer Mike Sylvester has been with the Little Rock Police Department for some 15 years. In 1982 he was a detective in the Homicide Division. He investigated the assault on Officer Oberle. Officer Oberle, a patrol officer, had been assigned to investigate a robbery of an individual at the Circle "B" restaurant on Roosevelt Avenue. He talked to the victim, one Roy Roberts, about 3:30 a.m. on December 23, 1982. Mr. Roberts told him he had been robbed by two black males in their 20s. Officer Oberle found the vehicle in which the robbers had fled a short distance away. When he approached the car, two black males jumped out and he was fired upon. Officer Sylvester's investigation identified the vehicle, determined the owner and the possible identity of the driver. Officer Oberle reviewed a photo spread and identified Harold Green as one of the robbers. Officer Sylvester was told by Officer Ivan Jones of the Little Rock Police Department that the latter had information from a confidential informant that petitioner Barry Fairchild was the other robber. Jones did not reveal to Sylvester the source of his information, but indicated that the source was generally reliable. Officer Oberle told Officer Sylvester that possibly three shots were fired, but he was not sure if they were fired by one or both of the robbers. The victim identified Mr. Green. Fairchild was not charged for the robbery itself.

 The warrant obtained by Officer Sylvester was turned over for service to the appropriate office in the Little Rock Police Department. Several efforts were made to locate Barry Fairchild and to execute the arrest warrant on him, but to no avail. Some of these efforts were undertaken before the murder of Marjorie Mason.

 Subjectively, Mr. Dale Adams, deputy prosecuting attorney, Ms. Michele Boyd, Chief Municipal Clerk, Detective Sylvester, Detective Ivan Jones, the officials who later processed the arrest warrant issued by Ms. Boyd, and all police officers who attempted to execute that warrant (arresting Barry Fairchild) acted in the good faith belief in the legality of what each was doing. No one recognized that there were any legal deficiencies in any of the procedures being followed.

 The issuance of arrest warrants by the clerk, whenever informations were filed by the prosecuting attorney or his deputies, was essentially a ministerial act in the view of the clerk. The Clerk was under the directions of the Municipal Court to issue such warrants upon such occasions. No one had informed the clerk that any independent probable cause hearing or determination was required of the Clerk. If and when an information was filed, the instructions were to issue the arrest warrant for the defendant designated in the information.

 II. The Arrest at Russellville.

 The petitioner, Barry Fairchild, knew the police were after him. He obtained a ride to Conway and then rode the bus to Russellville. The bus was stopped by police at Russellville but, for some unexplained reason, he was able to simply "walk away" from that scene. He then hid out in the woods in that area for several days. He would sleep during the daytime and roam around at night. On the night of March 3, 1983, at about 8:45 p.m., he went to the home of Mr. Pat Humphries who lived on North Detroit Street in Russellville. It was raining. Mr. Fairchild told Mr. Humphries, an elderly gentleman, that his car was broken down on the interstate which was only about a quarter-mile from the Humphries' residence. He stated that he needed a wrecker. As it turns out, Mr. Humphries' son and his son's girlfriend were in another room in the house. They had observed Mr. Fairchild approaching the house. They had heard on the radio about the search for Mr. Fairchild and the girl had apparently seen a photograph of Mr. Fairchild on the television. They "suspicioned" that Mr. Fairchild was in fact the person being sought by the police. The father called to his son to contact the wrecker service, but the son instead called the police and advised them not to come with their sirens on. Officer Ron Stobaugh was the first to arrive at the scene. He ran to the house and then tip-toed up on the porch and observed Mrs. Humphries looking through a telephone book and Mr. Humphries talking to a black man near the front door. Other officers were arriving by this time and going to both the front and the back of the house. Officer Stobaugh rushed into the house and grabbed Fairchild with his left hand and pulled him toward the front door. He had a gun in his right hand. Mr. Fairchild then started running out the front door where two more deputies grabbed at Mr. Fairchild. Mr. Fairchild was tripped, or simply stumbled, into the front yard, and Officer Stobaugh followed. The police had an attack dog near the front yard. The handler, believing Mr. Fairchild had an avenue of escape, directed the dog to attack Mr. Fairchild. The dog bit him on the scalp, and then firmly grabbed him on the side and held on. Mr. Fairchild was pushed over a car and handcuffed. The dog's handler then got the dog to let go. The dog did not attack Mr. Fairchild after he was handcuffed but only before he had been secured.

 Mr. Fairchild was then placed in Officer Larry Dalton's unit and taken to the emergency room at St. Mary's Hospital in Russellville. His head wound, a laceration about three inches long, was treated and bandaged. Mr. Fairchild was then taken to the Pope County Jail, where he was booked and fingerprinted. Some of the dogs were at the jail but none of them attacked or bothered Fairchild. Officer Dalton testified that a Pulaski County deputy sheriff (whom he did not recognize), Officer Reynolds, and he were in the office with Fairchild. Officer Reynolds is now deceased. Dalton testified that the unidentified Pulaski County deputy interrogated Fairchild at this time, and that when Fairchild did not answer, the Pulaski County deputy slapped Fairchild and screamed in his face. The Court has some difficulty with Officer Dalton's testimony and is not satisfied as to its accuracy. Officer Dalton was later fired from the Russellville Police Department and appeared to have some animus as a result. Furthermore, he did not come forward with such information until August of 1986. More important, when Mr. Fairchild testified at the Denno hearing in State Court he recounted much abuse but made no mention of any abuse occurring before his return to Little Rock. *fn1" Petitioner was not questioned about the Mason or Oberle cases at any time before his return to Little Rock.

 Many Pulaski County officers had participated in the manhunt in and around Russellville for a couple of days. By the night of the arrest, Major Bowman of the Pulaski County Sheriff's office and perhaps a half-dozen other deputies from Pulaski County were still in Russellville.

 When Mr. Fairchild arrived at the Pope County Jail, he was processed and his property inventoried. He was permitted to take a shower and was put in prison clothes. Officer Bowman and another officer drove Mr. Fairchild from Pope County back to the Pulaski Correctional Facility. Apparently they stopped along the way for gasoline for a period of 10-15 minutes. The distance from the Pope County Jail to the Pulaski County Correctional Facility is probably around 80-plus miles. Mr. Fairchild was not questioned by the officers during the trip back to Little Rock. From all the evidence, the Court gets the impression that, from the time he was actually secured during the arrest, Mr. Fairchild took a rather fatalistic, relaxed attitude.

 III. The Return to Little Rock.

 It appears that Mr. Fairchild and the officers left Russellville around 11:30 p.m. and arrived in Little Rock close to 1:30 a.m.

 When Fairchild arrived at the Pulaski County Correctional Facility, he was turned over to Major Dill, and then possibly to Sheriff Robinson. Mr. Fairchild was read his rights and Officer Waggoner, Major Dill, and others talked with him. Mr. Fairchild talked freely about his involvement in the murder of Ms. Mason. Some notes were taken on Mr. Fairchild's admissions and then arrangements were made to videotape his statement or confession. There was a casual atmosphere. Coffee and doughnuts were brought in and consumed by the officers and Mr. Fairchild. The Court estimates that Mr. Fairchild was at the Pulaski County Correctional Facility for approximately an hour prior to the time of the commencement of the videotaped interview. A good part of that hour was taken up with Mr. Fairchild's explaining his role in the crime, but there were also periods when everyone just sat around waiting for the videotape arrangements to be made.

 The force to which Fairchild was subjected at Russellville was necessary and incidental to the arrest. No force or threats or physical coercion were used against Mr. Fairchild on the trip back from Russellville to Little Rock, or at the Little Rock facility. Fairchild's attitude was: "You got me!" He was willing to talk.

 Officer Tom Waggoner was with Mr. Fairchild in the interview room. He had worked on the case and was also familiar with Fairchild. He secured the "rights" forms and advised Fairchild of his rights. Fairchild signed the forms and then freely discussed his involvement in the murder of Ms. Mason. When Mr. Fairchild agreed to give a videotaped interview, it was decided to move from the interview room into a larger office for that purpose.

 None of the officers who were with Mr. Fairchild suggested to him what his testimony should be.

 After the first videotaped statement was completed, Mr. Fairchild agreed to go with Major Dill, Sheriff Robinson and other officers on a "tour," starting at a point where Mr. Fairchild and his companion kidnapped Ms. Mason on Washington Street in North Little Rock and proceeding to the abandoned farm area near Scott. They then followed the route Mr. Fairchild and his companion traversed in leaving the area to the point where Fairchild's car ran off the road while being chased by an Arkansas State Police unit. Mr. Fairchild gave the directions which brought them all to the scene where Ms. Mason's body had earlier been found. He pointed out where they left the body. The Court did not, in the slightest, credit Mr. Fairchild's statements that the police officers were showing him the route taken and identifying for him the crime scene. At one point on the way back from the murder scene, Mr. Fairchild pointed out where he had thrown his gloves away. The officers stopped the cars and searched for the gloves but were unable to find them. During this "tour," the officers asked Fairchild about jewelry that they understood was taken from Ms. Mason's body. Mr. Fairchild told the officers that he had taken a watch from Ms. Mason but had sold it or given it away. When the officers asked who had it, he inquired if that person would get in trouble and was advised that such person would not get in trouble if he or she were not involved with the kidnapping or murder. Fairchild then told the officers that his sister had the watch. The officers then drove to Mr. Fairchild's house where they obtained the watch. They then returned to the Pulaski County Correctional Facility. Shortly thereafter, a deputy prosecuting attorney, Mr. Dale Adams, came to the facility and took another videotaped statement from Mr. Fairchild. A little later, officers from the Little Rock Police Department arrived and questioned Fairchild about his involvement in the assault on Officer Oberle.

 IV. The Informant's Tips.

 Officer Ivan Jones has been with the Little Rock Police Department for 18 years. He was a detective in 1982. He provided certain information to Officer Fitzgerald about the armed robbery of Mr. Roberts and the attack on Officer Oberle on December 23, 1982. He obtained information from an informant whom he believed to be very reliable that Barry Fairchild was involved in the incident. He received that information on December 23, 1982, and passed it on to Officer Sylvester. The informant told Officer Jones what had happened, who was involved, and that he had gotten the information from someone else. Officer Jones did not press the informant for more details.

 Officer Jones also received information from the same informant that Barry Fairchild was involved in the Mason murder. He received this information a couple of days after the murder. The informant told Officer Jones that he had heard some conversations to that effect out at Granite Mountain. He named the two people involved as Barry Fairchild and Fairchild's brother, Robert. The informant told Officer Jones that Robert had told him (the informant) that he (Robert) and Barry Fairchild raped the girl and then Barry shot her and that they left the girl, drove off, were chased, and then got out of the car and ran. Officer Jones testified that this confidential informant was used by him over a period of years and that he kept Jones informed of things going on in and around the Granite Mountain area. The information given was, in Jones' opinion, extremely reliable and was responsible for enabling Jones to make several cases. Although the informant was known to embellish his stories, Officer Jones testified that he never found that informant to be wrong. However, the Pulaski County Sheriff's file on the Mason case does reveal that Jones acknowledged that "about 50 % of the time information is not correct or greatly enhances his information to make it look like he knows more than he actually does" -- a characterization that might be read as suggesting that the informant's unreliability extended beyond mere embellishment. Officer Jones personally made several attempts to arrest Barry Fairchild on the Oberle assault case. He went to an apartment where Fairchild was supposed to be three different times and searched for him, but to no avail. These efforts to arrest Fairchild were made before the murder of Ms. Mason.

 V. Representation at Trial.

 Mr. Joe O'Brien, an attorney, represented Mr. Fairchild in the Mason murder case. Ms. Marjorie Kessel was appointed to assist him. They did not represent Mr. Fairchild in connection with the Oberle assault case. Mr. Fairchild had another attorney, Howard Koopman, representing him with respect to that Pulaski County charge. Mr. O'Brien, though young, has had considerable experience in the defense of criminal cases.

 The Court first observes that an overall review of the record indicates that Mr. O'Brien generally provided Mr. Fairchild with excellent legal representation. He is charged here with ineffectiveness in failing to challenge Mr. Fairchild's arrest in the Pulaski County case (the Oberle assault case). In this connection it should be noted that Mr. O'Brien did move to suppress the videotaped confession on the theory that Fairchild's arrest was illegal and that the confessions were obtained as a direct result of said illegal arrest. It will be recalled that Mr. Fairchild was, ostensibly at least, arrested on the Pulaski County charge. This arrest occurred before he was actually charged with Ms. Mason's kidnapping and murder. It was Mr. O'Brien's theory that the arrest on the Pulaski County charge was pretextual. Mr. O'Brien and Ms. Kessel did not directly attack the arrest of Mr. Fairchild on the Pulaski County charge as a predicate for seeking suppression of his confessions.

 Mr. O'Brien did determine that a warrant had been issued on the Pulaski County charge after an information had been signed and filed by the prosecuting attorney, coupled with the "affidavit" of Officer Sylvester. He believed that procedure to be sanctioned by Arkansas law and long practice. As suggested in the "Conclusions of Law" section, petitioner's attorneys were reasonable in relying in good faith upon the validity of the Arkansas law permitting the arrest warrants to be issued without an independent probable cause determination.

 It cannot be said, however, that they were reasonable in failing to note that the affidavit requirement of that law was violated in this case. Counsel's oversight may perhaps be explained by the fact that the applicable statute, Ark.Stat.Ann. § 22-751, fails to recite an affidavit requirement and adjoins a statutory section which sets forth an alternative procedure for obtaining an arrest warrant solely on the strength of an approved affidavit. Ark.Stat.Ann. § 22-752. Although this Court reads an affidavit requirement into section 22-751, see "Conclusion of Law," infra, petitioner's attorneys' apparent confusion in the face of the legislation is understandable. In any event, the Court finds that counsel's failure to assert this deficiency would not have affected the result because petitioner's arrest was lawful, there existing at the time probable cause to arrest him for the murder and rape of Ms. Mason. The facts, which were known and determined by the police before petitioner was arrested in Russellville, are, for convenience, detailed in the discussion of this issue under "Conclusions of Law" below.



 Petitioner maintains that he was denied effective assistance of counsel under the Sixth and Fourteenth Amendments because his counsel in the Lonoke County action failed to challenge his arrest pursuant to the Pulaski County warrant. He contends that his counsel could have successfully challenged the warrant by arguing, first, that the procedure for issuing the warrant was unconstitutional; secondly, that the warrant was issued without probable cause; thirdly, that police lacked probable cause to effect a warrantless arrest; and finally, that police relied on the Pulaski County warrant as a pretext to arrest him for questioning concerning the murder for which he was ultimately convicted in Lonoke County. He contends that the taint of the allegedly illegal arrest would have compelled the trial court to suppress the three confessions used against him at trial.

 Before considering the merit of petitioner's claims, this Court must determine whether his objections can appropriately be raised by his habeas corpus petition. As a general principle, a procedural default in state court will bar habeas corpus relief unless the petitioner can show cause for and prejudice resulting from the failure to raise the claim in state court. Engle v. Isaac, 456 U.S. 107, 129, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982); Wainwright v. Sykes, 433 U.S. 72, 90-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). The question of what constitutes "cause" has generated considerable controversy in the courts. See Note, " Stone v. Powell and the Effective Assistance of Counsel," 80 Mich. L. Rev. 1326, 1327 n.9 (1982) (citing cases). Any confusion on this score was resolved, however, by Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 2582, 91 L. Ed. 2d 305 (1986), in which the Supreme Court held that the established restriction on federal habeas review of Fourth Amendment claims, Stone v. Powell, 428 U.S. 465, 493, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), does not extend to Sixth Amendment claims alleging attorney incompetence in failing to pursue the Fourth Amendment claims in state court. The Court observed:

In order to prevail, the defendant must show both that counsel's representation fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668at 688, 104 S. Ct. 2052 at 2065, 80 L> Ed. 2d 674 (1984), and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct., at 2068. Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. Thus, while respondent's defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values.

 The ironic conclusion is that this Court will need to consider the merits of petitioner's claim in order to determine whether the claim can be properly presented here. As the analysis below will reflect, the Court is of the opinion that petitioner would have -- at least ultimately -- succeeded in challenging the Pulaski County warrant in state court. In order to determine whether counsel's failure to raise this challenge resulted in any prejudice to petitioner, the Court must determine, first, whether the confessions resulting from the arrest might be deemed admissible pursuant to the good-faith exception to the exclusionary rule and, secondly, whether the police had any basis other than the warrant for effecting the arrest. The Court is persuaded that there was indeed an independent basis for arresting petitioner -- namely, the existence of probable cause to arrest him for the Mason murder itself. In light of the Court's further conviction that the confessions were voluntarily made, it follows that respondent's petition must be denied under the standard set forth in Kimmelman. The discussion below will set forth not only the grounds for denying petitioner's petition, but also the grounds for rejecting various arguments offered by the state in support of its conduct. While consideration of the latter issues is not essential to the Court's holding, there are two compelling reasons for discussing them below. First, in a case involving the death penalty it is critical that ...

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