Gay

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

RANDY WILLIAM GAY PETITIONER

v. Civil No. 6:23-cv-06011

DEXTER PAYNE, DIRECTOR,

ARKANSAS DIVISION OF CORRECTION RESPONDENT

OPINION AND ORDER

In March 2015, the Petitioner, Randy W. Gay (“Gay”), was convicted of the capital murder

of Connie Snow by a jury in the 18th Judicial District-East located in Garland County, Arkansas,

with Circuit Judge John Homer Wright presiding. The jury imposed the death penalty. After

exhausting his remedies at the state level, Gay seeks habeas relief on multiple separate grounds,

each of which will be addressed below.1

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The matter comes before the Court on a Habeas Corpus Petition filed pursuant to 28 U.S.C.

§ 2254. ECF No. 2. Respondent (hereinafter “the State”) filed a Response and the state record.

ECF Nos. 13-14 & 18. Gay filed a reply brief. ECF No. 27.

I. FACTUAL BACKGROUND

On direct appeal, the Arkansas Supreme Court succinctly set forth the facts regarding the

murder of Connie Snow. Gay v. State, 506 S.W.3d 851 (Ark. 2016) (Gay I). The Arkansas

Supreme Court stated:

James Westlake testified he and his family operated a timber business in Garland

County in 2011. James testified that he paid Gay “a few hundred dollars each

week” to “keep an eye” on their equipment overnight. On May 10, 2011, James,

Jim Westlake, and Rickey Stewart were attempting to repair machinery at their

logging business in a wooded area of Garland County. Around 5 p.m. that day,

Gay arrived in a pickup truck, and Snow was in the passenger seat. James testified

1 In a separate opinion, this Court has found Gay procedurally defaulted on several claims. ECF

No. 58.

that Gay exited the truck and ordered Snow out of the truck; Snow did not comply,

and Gay went back to his truck and retrieved a shot gun and ordered Snow out of

the truck. As Snow was attempting to exit the truck; Gay shot Snow in the right

side of her face. The testimony demonstrates that James and Stewart both

witnessed the shooting. James testified that Gay loaded Snow’s body into the back

of his truck and exited the property. Snow’s body was recovered four days later

in a shallow creek, and Gay was charged with capital murder.

Id. at 854-55.

Prior to the charges at issue here, Gay had been convicted of (1) murdering his father-in-

law, James Kelly (“Kelly”), on August 12, 1978; (2) murdering his father, Glen Gay (“Glen”), on

May 4, 1991; and (3) terroristic threatening. These are the aggravating factors the State relied on.

ECF No. 14-8, pp. 99-102 (Kelly); ECF No. 14-8, pp. 104-106 (Glen); ECF No. 14-8, pp. 108-109

(terroristic threatening). 2

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II. PROCEDURAL HISTORY

On March 19, 2015, Gay was convicted by a Garland County Circuit Court jury of one

count of capital felony murder in the 2011 death of Connie Snow and sentenced to death by lethal

injection.3 Gay appealed the conviction to the Arkansas Supreme Court, which affirmed the

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conviction in Gay v. State, 506 S.W.3d 851 (Ark. 2016) (Gay I). Gay sought post-conviction

relief through Arkansas Rule of Criminal Procedure Rule 37.5. His petition was denied by the

Circuit Court, remanded by the Arkansas Supreme Court for additional factual findings, and

subsequently denied. Gay v. State, 2021 Ark. 3 (2021) (Gay II); Gay v. State, 2022 Ark. 23 (2022)

(Gay III).4

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2 ECF No. 14 contains the corresponding Bates numbers of the exhibit pages; it lists the first and

last page (beginning with RWG000001 and ending with RWG015948) contained in each

document numbered ECF No. 14-1 through ECF No. 14-56.

3 Gay’s first trial ended in a mistrial. Details regarding the first trial may be found in the Court’s

opinion on the issue of procedural default, ECF No. 58, or in the record.

4 These opinions are not reported in the Southwest Reporter.

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Gay was represented during his second trial by court appointed public defenders Mark

Fraiser, Brian Johnson, and Brandon Crawford. Ashley Hornibrook was retained as a mitigation

expert. ECF No. 14-4, pp. 804-05.

On March 11, 2015, jury selection began. ECF No. 14-5, p. 24. By March 13, 2015,

twelve jurors and two alternates had been selected. ECF No. 14-5, p. 955.

The evidentiary portion of the trial began March 16, 2015. ECF No. 14-5, p. 957. The

jury was sworn in and instructed by the Court. ECF No. 14-5, 968-973. After calling eighteen

witnesses and recalling one, the State rested. ECF No. 14-6, p. 463. Fraiser moved for a directed

verdict on the charge of capital murder, arguing the State had not shown Gay formed the necessary

intent and had proved only first-degree murder. ECF No. 14-6, pp. 464-466. The Court denied

the motion holding it was for the jury to determine if Gay had acted with premeditation and

deliberation. ECF No. 14-6, p. 466. Fraiser renewed his objection to the procedure the Court

utilized in selecting the alternate jurors. Id. He also renewed his objection to the Court’s

overruling of his requests for jurors to be stricken for cause. Id. These objections were noted for

the record. Id. Fraiser advised the Court the defense would rest without calling any witnesses.

ECF No. 14-6, p. 468. This completed the guilt phase of the trial.

On March 17, 2015, the jurors began their deliberations at 2:54 p.m. ECF No. 14-6, p.

533. At 3:32 p.m., the jurors returned from deliberations. ECF No. 14-6, p. 534. The jury

found Gay guilty of capital murder and of employing a firearm as a means of committing the

homicide. ECF No. 14-6, p. 535. The Court polled the jury, and all 12 jurors indicated the

verdict was their own. ECF No. 14-6, pp. 535-36. See also ECF No. 14-3, pp. 62-63, 80-81

(verdict forms).

On March 18, 2015, prior to the beginning of the penalty phase, Fraiser renewed all motions

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made at the close of the State’s case. ECF No. 14-6, p. 538. Fraiser raised the issue of whether

certain facts he deemed as non-disclosed aggravating circumstances could be utilized by the State.

ECF No. 14-6, pp. 538-39. The court granted Fraiser’s motion and limited the testimony “from

anyone relative to the aggravators that have been disclosed . . . [to] those . . . immediately

surrounding the act that [Gay] was convicted of.” ECF No. 14-6, pp. 544-45.

The State called eight witnesses, and the defense called six witnesses. ECF No. 14-6, p.

553 to ECF No. 14-7, p. 31. Both sides rested. ECF No. 14-7, p. 38. The defense rested without

Gay testifying. Id. The State offered no rebuttal testimony. Id. Court was adjourned for the

day. ECF No. 14-7, p. 34, 38. After discussions with counsel regarding jury instructions and

verdict forms, the trial resumed on March 19, 2015. ECF No. 14-7, p. 65. The court read the

jury instructions. ECF No. 14-7, pp. 65-78. The State gave its closing argument. ECF No. 14-

7, pp. 78-93. The defense gave its closing argument. ECF No. 14-7, pp. 94-121. The State

gave rebuttal. ECF No. 14-7, pp. 122-36.

The jury retired to deliberate at 11:41 a.m. and at 12:21 p.m. asked for a lunch break. ECF

No. 14-7, p. 139. Deliberations were resumed at 1:47 p.m. ECF No. 14-7, p. 140. At 4:08 p.m.,

the jury returned its verdict deciding Gay should be sentenced to death. Id. In accordance with

the jury verdict, the Court sentenced Gay to death by lethal injection. ECF No. 14-7, p. 147.

III. SCOPE OF REVIEW

“In general, if a convicted state criminal defendant can show a federal habeas court that his

conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas

corpus that requires a new trial, a new sentence, or release.” Trevnio v. Thaler, 569 U.S. 413, 421

(2013). “Because of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

codified in 28 U.S.C. § 2254, we give great deference to the factual findings made by the state

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court.” Roberts v. Payne, 113 F.4th 801, 807 (8th Cir. 2024). Section 2254(d) provides as

follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim—

(1) Resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) Resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

A state court’s decision will be viewed as “‘contrary to’ clearly established federal law if

the state court has applied a rule that directly contradicts Supreme Court precedent or has reached

a result opposite to a result reached by the Supreme Court on ‘materially indistinguishable’ facts.”

Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362,

405 (2000) (O’Conner, J., concurring)). When reviewing a state court’s decision for

reasonableness, the question is whether the state court’s application of “clearly established federal

law” was “objectively reasonable”; “an unreasonable application of federal law is different from

an incorrect application of federal law.” Williams, 529 U.S. at 409-10; see also Penry v. Johnson,

532 U.S. 782, 792-93 (2001). Therefore, a state court’s application of federal law might be

erroneous, in a reviewing court’s independent judgment, yet not objectively unreasonable.

Kinder, 272 F.3d at 538.

A habeas petitioner may also seek relief if the state court made an unreasonable

determination of the facts. However, the state court’s findings are subject to a deferential standard

of review. The state court’s findings are presumed correct unless the petitioner can rebut those

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findings with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Kinder, 272 F.3d at 538;

see also Marshall v. Lonberger, 459 U.S. 422, 432 (1983) (A federal habeas court must do “more

than simply disagree with the state court before rejecting its factual determinations. Instead, it

must conclude that the state court’s findings lacked even ‘fair support’ in the record.”). In other

words, a state court decision counts as an unreasonable determination of the facts “only if it is

shown that the state court’s presumptively correct factual findings do not enjoy support in the

record.” Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004) (citations omitted). In short, the

AEDPA creates a high bar for any claim adjudicated on the merits in state court.

IV. GROUNDS FOR HABEAS RELIEF

A. Claim 1—Trial Counsel rendered constitutionally ineffective assistance at the

penalty phase of Gay’s trial

Gay argues his counsel failed to conduct a reasonable pretrial investigation into Gay’s life

history, failed to integrate Gay’s prior offenses and prison records into a cohesive narrative, and

failed to explore and present multiple avenues of mitigating evidence such as childhood trauma,

exposure to violence, and chronic alcohol abuse. Habeas counsel sets forth a comprehensive

narrative regarding Gay’s life. ECF No. 2, pp. 13-38. According to that narrative, Gay had a

traumatic childhood suffering sexual abuse by another child and his father, was frequently exposed

to violence, began drinking at an early age, and experienced several failed relationships as a young

adult. Gay was incarcerated at least twice, and he was sexually abused during at least one of these

periods of incarceration.

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1. Claim 1-1: Counsel was ineffective for failing to investigate, develop, and

present mitigating evidence

a. Arguments of the Parties5

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Gay argues his counsel failed to fulfill his obligation “to conduct a thorough investigation

of the defendant’s background” including anything in his life that may militate against imposition

of the death penalty. Wiggins v. Smith, 539 U.S. 510, 522 (2003). According to Gay,

[t]he principal question here is not whether [Gay’s] trial counsel should have

presented a mitigation case but whether “the investigation supporting counsel’s

decision not to introduce mitigating evidence of [Randy’s] background was itself

reasonable.” Id. at 523 (emphasis in original). If counsel limits the scope of their

investigation for strategic reasons, then the court must consider the reasonableness

of their limited investigation and whether reasonable professional judgment

supports their limited investigation.

ECF No. 2, p. 43.

Gay points out his trial counsel had access to his pen pack which “made clear he suffered

physical and sexual abuse from his father, was diagnosed with alcohol use disorder, PTSD, and

major depression, and suffered multiple major adverse childhood experiences, such as being

abandoned by both his mother and father at different times in his life.” ECF No. 2, p. 43.

Counsel Fraiser did retain Hornibrook, a mitigation expert, to assist in the development of a

mitigation case, however, according to Gay, little investigation was done. Instead, defense

counsel focused their mitigation efforts on Gay’s siblings and hung their mitigation case solely on

the testimony of Gloria Lindsay, Gay’s sister. Id. at 44. At the Rule 37.5 hearing, defense

counsel testified they considered Lindsay to be a self-absorbed and extremely difficult witness to

5 This is intended only as a summary of the arguments of the parties.

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interview and schedule. According to Gay, Fraiser had a “multitude of witness with documented

knowledge of Randy’s social history.” Id. at 45. Gay denies he refused to aid in his mitigation

investigation and asserts he had “countless meetings and conversations with Hornibrook in which

he provided numerous details of abuse.” Id.

In particular, Gay contends trial counsel unreasonably failed to: (1) investigate evidence

of childhood trauma and abuse; (2) investigate or present evidence of trauma readily apparent from

the FBI interviews; (3) investigate or explain Gay’s lifelong struggle with alcohol abuse; (4) retain

an expert to evaluate and discuss Gay’s PTSD, depression, and childhood trauma; and

(5) investigate and present mitigating evidence which prejudiced Gay at sentencing.

The State maintains a wealth of powerful mitigation evidence was presented at trial. ECF

No. 13, p. 42. It notes both Fraiser and Hornibrook testified at the habeas phase that Gay refused

to testify or otherwise cooperate in developing mitigating facts thus forcing them to rely on family

members to develop that history. Id., pp. 43-44. Moreover, the State asserts defense counsel

thoroughly investigated the aggravating circumstances. Id., p. 44. According to the State,

defense counsel’s mitigation strategy was to convince the jury to remove Gay from society rather

than to forfeit his life. Id., p. 45.

Further, the State maintains evidence of the trauma Gay suffered was introduced. First,

evidence regarding Gay’s sexual abuse was introduced through the testimony of Lindsay. ECF

No. 13, p. 43. Second, Gay’s exposure to violence was introduced through evidence Gay was

present when Glen murdered Scotty Garner, Gay’s cousin.6 Id., p. 44. Third, Gay’s alcohol

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abuse was a consistent theme at his trial. Id., p. 47. Fourth, the ADC pen pack contained

6 Testimony at the Rule 37.5 hearing suggests the actual murder was done by an individual other

than Glen.

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evidence of Gay’s sexual abuse in prison and of his diagnoses. Id., p. 49.

When proper deference is given to the conclusions of the Arkansas Supreme Court, the

State maintains it is clear Gay is entitled to no relief on this claim. ECF No. 13, p. 50. The State

maintains defense counsel made strategic decisions based on the facts of the case not to pursue

certain avenues. Id., p. 51. “These choices, when made after thorough investigation, are

virtually unchallengeable.” Id.

b. Review of the Record

As relevant to this claim, Gay argued trial counsel failed to effectively prepare for trial and

sentencing and failed to reasonably investigate or reasonably determine a particular investigation

was unnecessary. ECF No. 14-19, p. 38. Included in his overall claim, were the following

specific allegations of trial counsel ineffectiveness:

(1) the failure to investigate and present a meaningful theory of mitigation;

(2) the failure to investigate and present as mitigating evidence Gay’s medical health

history, mental health history, and social history;

(3) the failure to investigate Gay’s prior diagnosis of post-traumatic stress disorder

(PTSD), and to present evidence of the diagnosis in either the guilt or penalty phases;

(4) the failure to retain an expert in PTSD and present expert testimony in the guilt and

penalty phase;

(5) the failure to investigate Gay’s chronic alcoholism and present it as evidence of Gay’s

reduced mental state in the guilt phase or reduced moral culpability in the penalty

phase;

(6) the failure to retain an expert in chronic alcoholism to testify to its long-term damage

to the brain and consequent Neuro-Cognitive Disorders and to present this evidence as

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a reduced mental state in the guilt phase or reduced moral culpability in the penalty

phase;

(7) the failure to investigate Gay as the victim of sexual abuse as a child; and

(8) the failure to retain an expert in child sexual abuse and present this evidence in

mitigation.

Id., p. 40.

A hearing was held on the Rule 37.5 Petition on December 6-7, 2018. ECF No. 14-20, p.

1. Gay presented the testimony of several expert witnesses, Gay’s former counsel Fraiser, and

the mitigation expert Hornibrook.

Gay’s first witness was Dr. Matthew Mendel, a clinical and forensic psychologist. ECF

No. 14-20, pp. 4-5. Dr. Mendel conducted a psychological evaluation on Gay focusing on

childhood abuse including sexual abuse. Id., p. 5. He stated:

Randy Gay was subjected to just a huge range of adverse childhood experiences,

risk factors that damaged him; that have caused him lots of problems in lots of areas

over the course of his life. Those include several different instances of childhood

sexual abuse, but also physical abuse, verbal and emotional abuse, the loss of his

mother who stopped being involved early in his life; basically, a further

abandonment when he spent time in an orphanage. Witnessing his father threaten

violence to others as well as his father’s frequent threats of violence to him. And

all of these things, among other factors, have had a major damaging impact

affecting all aspects, so virtually all aspects of Randy Gay’s life.

Id., pp. 9-10. Dr. Mendel believed “there’s an enormous amount of mitigating evidence here.”

Id., p. 10.

To formulate his opinions, Dr. Mendel spent nine hours with Gay on October 24th and

25th, 2018, and reviewed the opinion of the Arkansas Supreme Court, a case synopsis prepared by

habeas counsel, Lindsay’s trial testimony, interviews conducted by defense counsel of Janice

Cochran, Gay’s ex-wife; Jeannie Smoke, Gay’s former stepmother; Shirley Barron, another of

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Gay’s sisters; and Lindsay. ECF No. 14-20, p. 15. He also reviewed the FBI interviews of Darrel

Garner, Gay’s first cousin; Jeannie Smoke; and Shirley Barron. Id. Finally, he administered the

Detailed Assessment of Posttraumatic Systems (DAPS). Id. With individuals facing a death

penalty, Dr. Mendel testified he approached the issue of childhood sexual abuse with “some degree

of skepticism because of the potential gain that could come from – to someone for if they were to

– through alleging sexual abuse.” Id., p. 16.

In Gay’s case, while Dr. Mendel did not find a paper trail of sexual abuse complaints, he

did find a prior history of Gay disclosing the sexual abuse which, Dr. Mendel opined, supports the

veracity of Gay’s claims. ECF No. 14-20, pp. 17-18. In fact, Gay disclosed the abuse long

before the capital murder trial. Id. Dr. Mendel testified sexual abuse by a family member is seen

“as a huge betrayal, so there’s issues of – of trust. Often you get people who – who just don’t

trust other people, who expect that people are out to harm them, hurt them.” Id., p. 21. In males,

in particular, Dr. Mendel testified hypermasculinization often occurs. Id., p. 22.

You have with males, in particular, the term I use is hypermasculinization. So you

get these males who were abused and experienced the abuse as a fundamental

challenge to their sense of themselves as male, as masculine, as strong, as capable,

competent, powerful, and they will take on these compensatory strategies where

they will become aggressive. They will become even violent. They will fight at

the drop of a hat. They’ll be reactive or over-reactive.

Id.

Dr. Mendel noted the rate of alcoholism and substance abuse is generally “very high” in

individuals who have been a “victim of child sexual abuse . . . particularly by a family member.”

ECF No. 14-20, p. 22-23. Dr. Mendel stated Gay’s pulling back from relationships and

interactions was “much more severe with him being really isolated and living in the – in the woods,

literally.” Id., p. 25.

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In his report, Dr. Mendel listed fourteen risk factors pertinent to Gay, and recounted these

in his testimony: (1) Gay’s mother left him and his sisters when Gay was about five years old;

(2) his father, Glen, placed Gay and his sisters in a “children’s home” for about a year; (3) Gay

was sexually abused by an older child at that home; (4) Glen was a severe alcoholic; (5) Glen

subjected Gay’s mother and stepmother to frequent and severe physical abuse in view of Gay and

his siblings; (6) Glen raped Gay when Gay was approximately eight years old, and Glen attempted

to sexually assault Gay on two other occasions the following year; (7) Glen sexually abused Gay’s

half-sister, Candy, for many years, a fact that was known within the family; (8) Glen frequently

threatened Gay with physical violence including holding a gun to his head and threatening to kill

him; (9) Gay witnessed Glen threaten multiple other individuals with physical harm or death;

(10) Glen raped a female peer of Gay’s in the backseat of a vehicle while Gay drove the vehicle;

(11) Glen made sexual overtures to Gay’s first wife; (12) Gay was subjected to an attempted violent

rape while in prison at the age of twenty; (13) Glen attempted to rape Gay’s second wife; (14) Gay

witnessed Terry Camp murder Garner with Glen’s assistance, and Glen prevented Gay from

getting help for Garner. Id., pp. 27-28.

Dr. Mendel described Glen’s relationship with Gay as “one of the most messed up

relationships I have ever come across.” ECF No. 14-20, p. 29. Dr. Mendel believed Gay was

“unable to leave” the relationship despite the years of severe abuse and severe conflict. Id., p. 30.

Dr. Mendel referred to the relationship as an “enmeshed conflictual relationship.” Id. While he

could understand it clinically, Dr. Mendel testified the relationship was “pretty far out there.” Id.,

p. 32. In fact, Dr. Mendel said he did not “think I’ve ever come across a relationship that – that

captures that enmeshed conflictual dynamic more intensely than that between” Gay and his father,

Glen. Id. Dr. Mendel referred to Glen as being “sadistic, violent – probably a psychopath . . .

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with no concern for anyone other than himself in getting what he wanted when he wanted it.” Id.,

p. 33.

Dr. Mendel testified the more adverse childhood a person experiences, the more likely that

person is to “be alcoholic or substance abusing.” ECF No. 14-20, p. 41. There is also a genetic

linking to alcoholism. Id. The modeling and messaging Gay received from Glen is that men

deal with stress through drinking and violence. Id.

With respect to the deaths of Kelly and Glen, Dr. Mendel said in both events “Randy felt

tremendously threatened and in danger himself.” ECF No. 14-20, p. 45. As recounted by Gay,

Gay struck or punched his first wife, who was Kelly’s daughter. Id., p. 46. When Kelly found

out, Kelly smashed Gay’s head on the hood of a car and said if Gay ever did that again he would

“come and shoot [his] brains out.” Id. In a second incident, Gay claimed he had not abused his

wife, nevertheless, Kelly believed Gay had struck her. Id. Gay was told by his friends that Kelly

was looking for him, with one friend adding that Kelly was planning to kill Gay. Id. Kelly then

pulled up in a car. Id. When Kelly reached in his car, Gay assumed Kelly was reaching for a

gun, so Gay responded to the perceived threat by shooting Kelly first. Id. According to Dr.

Mendel, in “Gay’s world, in which people are pulling guns on each other a lot and threatening

each other a lot, that was his – his response, his belief, his reaction.” Id.

On the day Gay shot Glen, the two had been arguing as they carried a table up a hill. Glen

pushed the table causing Gay and the table to tumble downhill. ECF No. 14-20, p. 48. At that

point, Glen began striking Janice (Gay’s wife) and picked up a tent stake and threatened her with

it. Id. Gay approached where a shotgun was laying on the ground. Id. Glen stated, “You

better get that shotgun – you better get to that before I do, boy.” Id. Gay picked up the shotgun

and pointed it at his father. Glen responded by pulling his pistol and pointing it at Gay. Id. Gay

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then shot and killed Glen. Id. Dr. Mendel testified that these two cases – Gay’s killing of Kelly

and Glen – demonstrated the level of fear and reactivity Gay experienced. Id., p. 49.

After assessment, Dr. Mendel concluded Gay had PTSD. ECF No. 14-20, p. 49. Dr.

Mendel explained one consequence of PTSD is hypervigilance or extreme vigilance which Dr.

Mendel described as “extreme watchfulness, guardedness. Basically, being constantly vigilant,

looking around us and expecting, suspecting danger and challenges and threats and always being

on guard against them.” Id., p. 51. Another symptom is having an exaggerated startle response.

Id., pp. 51-52.

Dr. Mendel also diagnosed Gay with alcohol dependence and depression. ECF No. 14-

20, pp. 52-53. Dr. Mendel concluded Gay “went through a more—a more severe, more wide-

ranging pervasive set of damaging childhood events and childhood traumas, more than the vast

majority of—of capital murder defendants that I’ve seen.” Id., p. 54. Dr. Mendel testified Gay

was:

likely to feel threatened much more easily, readily, and more intensely than most

of us would have . . . or that almost anyone would if they hadn’t had the

circumstances that he’s had. And when he’s in those situations, he has learned

from early on in his life to do react to them with violence and aggression, and he

reacts suddenly, quickly, and extremely.

Id., pp. 54-55.

Gay’s second witness was Dr. John Roache a professor in the departments of psychiatry

and pharmacology, at the University of Texas Health Science Center. ECF No. 14-20, pp. 62-63.

Dr. Roache diagnosed Gay with alcohol abuse disorder (AUD) and concluded Gay’s chronic

alcoholism and its effects on his brain resulted in “a tendency to react emotionally and violently

and impulsively.” Id., p. 64. Dr. Roache testified AUD causes neurochemical changes to the

brain. Id., pp. 83-84.

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Dr. Roache testified Gay had severe AUD at the time of Gay’s arrest for Snow’s murder.

ECF No. 14-20, p. 76. AUD is the result of a combination of genetic and environmental factors.

Id. The greatest genetic risk comes from the father being an alcoholic. Id. Environmental risk

factors include “peer influences, the environment in which you’re raised, you know, the

commonality [of] substance use and drinking behaviors in your environment around you, and role

modeling.” Id. In Gay’s case, “[t]he physical, sexual, and emotional abuse that Randy [Gay]

suffered makes—conveys particular risks of excessive drinking in a pattern that many would

describe as self-medicating, self-medication, using alcohol.” Id., p. 77.

Dr. Roache found two significant environmental factors predisposed Gay to AUD. Id., p.

79. The first was “the role modeling of his father drinking heavily.” Id. The second was “the

physical, sexual, and emotional abuse that Randy suffered that produced, you know, self-doubt,

the hyperarousal, the emotional distress, the fear and anxiety, and all of those things are highly

likely, most likely, most probably gonna lead to heavy drinking.” Id., pp. 79-80. Dr. Roache

indicated he was not referencing voluntary intoxication, which is not a defense to a criminal act,

but rather a diagnosable mental health disorder. Id., p. 81.

Dr. Roache testified AUD causes neurochemical changes to the brain. ECF No. 14-20,

pp. 83-84. The prefrontal cortex is the part of the brain where logical reasoning processes. Id,

p. 84. Dr. Roache explained there is an impulse to react, but logical decision-making can inhibit

that reaction. Id. The chronic and excessive daily use of alcohol inhibits or damages the

prefrontal cortex, the area of the brain used for making rational decisions in life. Id., p. 85. Dr.

Roache explained “if there were a sudden noise that one associated with danger or risk of having

occurred in the past, it would activate the amygdala, make the amygdala hyperreactive aroused

sending fear signals, warning signals, danger signals, and then it should be the higher cortical parts

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of like the prefrontal cortex that say, Wait. Stop. No, it’s okay. Don’t react that way.” Id.¸ p.

86. The “amygdala’s also been responsible for aggression, aggressive acts and -- and behaviors.”

Id.

Dr. Roache testified “with years of exposure of alcohol,” the white matter of the brain is

decreased resulting in “decreased prefrontal activity and increased lower emotional activity in the

amygdala and other lower centers.” Id., p. 89. Dr. Roache also testified “alcohol intoxication

itself reduces what is called cognitive flexibility . . . [t]hat cognitive flexibility of being able to

think and weigh and consider alternatives is diminished under the influence of alcohol.” Id. Dr.

Roache believed Gay had learned to act with hostility and aggression and the decreased cognitive

flexibility reduced “his options to consider alternative paths and courses of action.” Id., p. 90.

Dr. Roache agreed with Dr. Mendel’s conclusion that Gay had PTSD. ECF No. 14-20, p.

92. Dr. Roache referred to Gay’s having both AUD and PTSD as being the “a perfect storm of—

of these two thing[s]—events or causes that make one impulsive, aggressive, and reactive.” Id.¸

p. 95. Dr. Roache testified these diagnoses would be an important factor, neurologically

speaking, to explain why Gay acted in the manner he did when he killed Snow. Id.¸ pp. 95-96.

Gay’s third witness was Professor J. Thomas Sullivan, University of Arkansas at Little

Rock, Bowen School of Law. ECF No. 14-20, pp. 99-100. Professor Sullivan testified regarding

the standard of care for capital counsel in Arkansas during 2015 when the case was tried. Id., pp.

103-04. Professor Sullivan explained the standard of care is determined by decisions of the

United States Supreme Court and the Arkansas Supreme Court which articulate performance

standards. Id., pp. 104-05. Additionally, the American Bar Association (ABA) has set criminal

justice standards relating to the performance of capital counsel. Id., p. 105. These standards are

routinely cited as guidelines. Id.

16

Professor Sullivan testified a defense counsel should question prospective jurors to

determine whether the juror will consider mitigating circumstances. ECF No. 14-20, p. 118.

While defense counsel cannot ask the juror to commit to deciding a specific issue or to considering

specific evidence, defense counsel can ask whether the juror would meaningfully consider specific

mitigators such as intoxication or child abuse. Id., pp. 122-125. Voluntary intoxication cannot

be a defense to a crime or reduction of culpability, however, “impairment as a result of intoxication

may be a mitigating factor in sentencing in a death penalty case.” Id.¸ p. 126. In Professor

Sullivan’s opinion, it would not be fact-qualifying to ask a juror whether he or she could “give

meaningful consideration and effect to intoxication as a factor mitigating against the death

penalty?” Id., p. 128. If a juror could not, he or she would be considered mitigation impaired

and not qualified to serve on the jury. Id., p. 129.

In Gay’s case, the State asked the jurors if they believed intoxication could excuse a

person’s conduct and whether the potential consequences should be less. ECF No. 14-20, pp.

135-36. In Professor Sullivan’s opinion, the State’s questions effectively resulted in mitigation

impaired jurors. Id., pp. 136-37

In Professor Sullivan’s review of the record, defense counsel never asked any of the jurors

if they could give meaningful consideration and effect to any mitigating circumstance. ECF No.

14-20, p. 130. Even if defense counsel thought the court would not allow such questioning, a

proffer should have been made because of the adverse and potentially prejudicial consequences of

such a ruling. Id. Defense counsel wants the jury to be life-qualified not death-qualified. Id.,

p. 131. In Professor Sullivan’s opinion, the failure to make such a proffer falls below the standard

of care. Id.

Turning to the sentencing phase of the trial, Professor Sullivan indicated the pen pack,

17

introduced by the Defense, contained damaging evidence that did not support a mitigation case in

Gay’s favor. ECF No. 14-20, p. 146. For example, the pen pack contained a letter Glen wrote

to the parole board seeking Gay’s release on a prior incarceration. Id. The State emphasized this

letter to the jury during closing argument and asked them to review it. Id. The pen pack also

contained the results of an MMPI which the State used in characterizing Gay essentially as a cold-

blooded killer. Id.¸ pp. 149-50. Parole records were in the pen pack and contained references to

Gay’s threatening to blow up someone’s house, being arrested for battery, carrying a shotgun,

engaging in domestic violence, being arrested for being a felon in possession of a firearm, and

having his parole revoked. Id., pp. 151-52.

In Professor Sullivan’s opinion, the defense counsel’s admitting of the pen pack fell below

the standard of care and provided the State with evidence damaging to Gay. Id., pp. 151-54.

Further, these records did not support any mitigating circumstances that they were admitted for;

instead showing a history of violence, threats, and illegally carrying a gun. Id., pp. 152-53. The

records “contained information contrary to the mitigation theory in the case” and “invited error.”

Id., pp. 153-54.

Professor Sullivan’s testimony then moved to defense counsel’s eliciting of the testimony

from Lindsay about the shooting death of Garner and the fact that no one was ever charged with

the murder. ECF No. 14-20, pp. 157-59. Professor Sullivan opined that with no clear

explanation “for why the Scotty Garner killing would’ve been mitigating for” Gay it “left the door

open to jurors to consider the possibility that [Gay was] the killer and maybe Glen was covering

up for [Gay], then you’ve added more aggravation” by opening the door to the “ambiguous crime.”

Id., p. 159. Professor Sullivan identified one of the themes of the State’s close was Gay had

“somehow escaped full liability for the two prior murders for which he been convicted.” Id., pp.

18

160-61. Had the testimony regarding Garner’s death been more fully developed it would have

shown Gay as a more responsible and caring individual and would have resulted in “substantial

mitigation.” Id., p. 161. Professor Sullivan concluded defense counsel’s failure to investigate

and develop the facts more, fell below the standard of care. Id., p. 163.

In Professor Sullivan’s judgment, when the evidence of prior sexual abuse, violence in the

home, being exposed to Garner’s death, and having been diagnosed with PTSD is considered,

competent counsel should have consulted a mental health expert in connection with the mitigation

evidence. ECF No. 14-20, pp. 162-63.

Regarding defense counsel’s motion for a directed verdict, Professor Sullivan noted the

defense essentially conceded all the elements of first-degree murder had been proved. Id., p. 164-

65. In fact, during defense counsel’s close, counsel conceded to the jury that Gay was guilty of

first-degree or second-degree murder. Id., p. 165.

At trial, a photo of a knife found in the passenger compartment of the vehicle was

introduced. ECF No. 14-20, p. 166. Defense counsel testified that he did not know whether

Snow had grabbed the knife. Id. In Gay’s medical records, Gay stated during a psychological

examination that a woman tried to stab him and he shot her. Id., p. 167. Despite this photo and

the statement Gay made during his psychological examination, defense counsel did not seek a self-

defense instruction. Id. According to Professor Sullivan if Gay recklessly formed the belief he

was under attack there might not have been enough to request a self-defense instruction, but there

may have been a basis to request a lesser-included offense instruction under an imperfect self-

defense theory. Id.¸ p. 169. Professor Sullivan testified in his opinion a manslaughter instruction

should have been requested, but he was not certain the failure was sufficient to reverse the case

because Gay did not testify. Id. In Professor Sullivan’s estimation, defense counsel should have

19

investigated the question of whether a lesser-included instruction was appropriate considering the

evidence of the knife and Gay’s statement to the psychological examiner. Id at 170.

In reviewing the case, Professor Sullivan had examined Gay’s medical records and the FBI

302’s or witness summaries. ECF No. 14-20, p. 173. Gay’s medical and mental health records

included the diagnosis of alcohol dependence disorder and indicated Gay’s family was

dysfunctional. Id., p. 175. Glen was noted to be an alcoholic and an abusive person. Id. Notes

were made in the records Gay had been physically and sexually abused by his father; his father

had been sexually inappropriate with Gay’s wives and girlfriends and had sexually abused Gay’s

sister; and described Gay as suffering from the symptoms of PTSD and major depressive disorder.

Id., pp. 176-77. Professor Sullivan testified all this evidence suggested an avenue regarding

mental health issues on Gay’s part that should have been pursued by defense counsel. Id., p. 182.

Under all these circumstances, in Professor Sullivan’s opinion, it was “absolutely” a failure

of defense counsel to meet the standard of care not to consult with a mental health expert. Id., p.

185. He stated: “there was no objectively reasonable strategic decision for not investigating and

having this evidence available in the event you wanted to make the decision to offer it at trial.”

Id., p. 186. In Professor Sullivan’s estimation, this material should have been presented in the

guilt phase to support the lesser-included offense of first-degree murder or manslaughter and in

the mitigation phase to present a meaningful theory of mitigation. Id., 186-87.

As to defense counsel’s duty to investigate the aggravating factors, Professor Sullivan

indicated the State met its burden of showing the existence of the aggravating circumstances in

Gay’s case by merely showing the existence of the prior convictions. ECF No. 14-20, p. 189-

190. In Professor Sullivan’s view, it was then up to defense counsel to investigate the aggravators

to see whether the circumstances themselves were egregious or not to assist the jury in determining

20

whether the aggravators warranted the imposition of a death sentence. Id.

The State submitted Gay’s murder of Kelly to the jury as an aggravator. Professor

Sullivan testified the prosecutor’s file contained statements and evidence that defense counsel

should have introduced to lessen the impact of the Kelly murder aggravator. Such statements and

evidence included (1) Gay, who was nineteen when he killed Kelly, had been drinking and was

upset leading up to his murder of Kelly, (2) according to one witness interview in the file, Gay had

been talking about killing himself, (3) Kelly threatened “he was going to beat [Gay’s] brains in” if

Gay laid another hand on Sherry, who was Kelly’s daughter and Gay’s wife, (4) Gay stated he just

wanted Kelly to drive away and did not mean to shoot him, and (5) Sherry submitted a letter stating

the sentence Gay received was fair and just. ECF No. 14-20, pp. 192-93. Sherry testified at the

penalty phase of this trial, however defense counsel did not cross-examine Sherry regarding her

statement that Gay had received a fair and just sentence for murdering Kelly. Id., p. 196. Based

on his review of the record, Professor Sullivan testified defense counsel introduced none of this

evidence from the prosecutor’s file in an attempt to lessen the aggravating weight of Gay having

murdered Kelly. Id., p. 194.

With respect to Gay’s murder of Glen, there were statements in the record that: Gay

reported Glen had pulled a gun on him and he had no choice but to shoot; Patty Gay, one of Gay’s

sisters, said Gay and Glen had been arguing lately and guns had been pulled; a citizen informant

told the Sheriff that Gay shot Glen in self-defense; Glen’s arrest history showed he had been

arrested for aggravated assault and endangering the welfare of a minor and convicted of two counts

of maiming an animal; Janice Cochran, Gay’s wife at the time, said she tried to calm Glen down

and thought he was going to first hit her with a sharp tent pole and then Gay; Janice Cochran also

stated that Glen hollered he would get Gay’s “ass” and something like, “You better get to it before

21

I do;” after the shooting Gay was crying and saying, “Dad, I didn’t want it this way.” ECF No.

14-20, pp. 197-01. Professor Sullivan testified that with this information, defense counsel could

have argued to the jury to give less weight to the aggravating factor of Gay’s conviction of

murdering Glen. Id., p. 201.

On cross-examination, Professor Sullivan acknowledged he did not speak with defense

counsel or the mitigation specialist assigned to assist them. ECF No. 14-20, p. 204. Nor did

Professor Sullivan know what investigation had been performed other than there being a list of

mitigating circumstances present in a file created by the mitigation specialist. Id., pp. 204-05.

However, Professor Sullivan emphasized the trial record is clear that the mitigation evidence was

not produced. Id., p. 205. Professor Sullivan also stressed there was no evidence in the file that

a mental health expert had been consulted. Id., p. 206. In line with his earlier testimony,

Professor Sullivan noted the pen pack contained some valid mitigating evidence including that

Gay was not a problem prisoner. Id., p. 207.

Professor Sullivan conceded witness statement’s taken from the prosecution files would

not be independently admissible unless there was an exception to the hearsay rule. ECF No. 14-

20, p. 214. However, with respect to mitigation evidence, Professor Sullivan noted the defense is

not bound by stricter rules regarding admissibility of the evidence. Id., pp. 218-19. Professor

Sullivan agreed that admitting Sherry Gay’s testimony concerning the sentence Gay received for

murdering her father would have opened the door to previously excluded testimony about Gay

having beaten her the night before he murdered Kelly. Id., pp. 217-18. Professor Sullivan also

acknowledged that in Gay’s polygraph examination Gay stated Glen did not have a gun at the time

of the shooting. Id., p. 218. However, in Professor Sullivan’s view, the statements provided

investigative leads. Id., p. 215.

22

Gay’s fourth and final witness was Ashley Hornibrook who served as the mitigation

specialist for his trial team. ECF No. 14-20, p. 220. Hornibrook testified she made the rough

notes listing mitigation factors including that Gay had been sexually abused by Glen. Id., pp.

221-22. Hornibrook could not recall if her note about the sexual abuse was a result of her

reviewing the prison records or a conversation she had with Gay. Id., p. 225. Hornibrook

testified she made multiple visits to the prison to speak with Gay and attempted to speak with him

at court hearings. Id. While Hornibrook testified she and defense counsel took additional steps

to investigate these mitigating factors, she indicated there would have been notes in her file

referencing an expert consultation if she had been present for such consultation. Id., pp. 226-27.

She could not independently recall consulting any experts and believed it would have been

reflected in her notes. Id., p. 229. Hornibrook was aware Sky Tapp, a private attorney first

retained by Gay to represent him, had advised Gay not to cooperate with the psychologist ordered

to evaluate him. Id., pp. 229-30. Had they consulted with an expert in child sexual trauma,

Hornibrook testified she did not believe Gay would have cooperated with the expert. Id., p. 230.

In fact, Hornibrook testified Gay “did not want us to proceed with any of that, any of those angles.”

Id., p. 231. Hornibrook testified Gay would not even talk to her about it as a mitigation specialist.

Id., p. 233.

The State’s first witness was the primary defense counsel, Fraiser. ECF No. 14-20, p. 239.

During voir dire, Fraiser testified he did everything he could to get any jurors expressing a pro-

death penalty stance excused for cause. Id., p. 242. The defense team’s goal was to get as many

jurors as possible that were “bordering on being excluded because they couldn’t consider the death

penalty.” Id. For those hesitant jurors, Frasier attempted to get them to say they would consider

the death penalty. Id., p. 243.

23

Fraiser testified the decision was made to introduce the pen pack as evidence of mitigating

circumstances. ECF No. 14-20, p. 245. In deciding whether to introduce the pen pack, the fact

that Gay had been incarcerated most of his adult life and otherwise lived an isolated type of

lifestyle were considered. Id., p. 247. These facts limited the “people that could come forward

and testify about Randy, the positive things about Randy.” Id. By the time the decision was

made, the jury had already heard Gay had been convicted of two other homicides through the use

of guns, and as a result, the introduction of the pen pack “seemed to [the defense team] to be

minor.” Id. Fraiser testified it was a strategic move which in his opinion worked because the

jury did find the existence of mitigating circumstances. Id., p. 248.

Fraiser testified the defense team attempted to convince Gay to testify at least in the

sentencing phase but he refused. ECF No. 14-20, p. 250. In fact, Fraiser testified he “implored

[Gay] to do it, ‘Get on the witness stand and try to save your life.’” Id.

Fraiser testified Gay was not “very forthcoming about his past and wanting to—or being

able to help us.” ECF No. 14-20, p. 260. While Gay was always respectful and polite, he did

not help them despite being repeatedly asked to do so. Id.

With respect to the childhood abuse, Fraiser emphasized the only sponsoring witness they

had to support this was Gay’s sister, Lindsay. ECF No. 14-20, p. 268. In connection with the

alleged failure to investigate and present mitigating evidence regarding Gay’s medical health

history, mental health history, and social history, Fraiser testified he would defer to Hornibrook

on the medical and social history. Id. He knew Hornibrook had obtained Gay’s school records

because they had a teacher testify. Id. As far as Gay’s mental health history, Fraiser indicated

he knew Gay had undergone a forensic examination and been found fit and competent. Id.

Fraiser knew Gay would refuse to cooperate and, based on his prior dealings with Gay, knew he

24

was “founded in reality as to time and place.” Id. Fraiser “didn’t see where—where there was

anything to go forward on the mental health part of it.” Id. Fraiser was aware of the diagnosis

of PTSD because it was brought up in the pen pack. Id., pp. 268-69. Fraiser deferred to

Hornibrook as to any steps taken to follow up on that diagnosis. Id., p. 269.

Fraiser explained he would need the executive director’s approval to retain an expert, and

he did not believe simply having a diagnosis of PTSD an adequate basis to obtain approval. ECF

No. 14-20, pp. 269-70. Further, Fraiser noted such approval would likely be more difficult to

obtain due to Gay’s refusal to cooperate. Id. With respect to retaining an expert in alcoholism,

Fraiser testified Gay did not want to talk about his past and there was plenty of evidence introduced

regarding his drinking. Id. On the issue of childhood sexual abuse, Fraiser pointed out Gay was

not cooperating so the only evidence they had was Lindsay’s testimony, and he could not tell from

the mitigating factors whether the jury believed her. Id., p. 271.

Fraiser was next asked about the alleged failure to investigate the circumstances of the two

prior murder convictions. ECF No. 14-20, p. 271. He indicated he had reviewed the prosecutor’s

file on the Kelly murder and had some discovery on the Glen murder. Id., pp. 271-72. Fraiser

was unaware of any way to combat the aggravating circumstances regarding the convictions or to

argue a murder conviction was not a felony involving violence. Id., pp. 272-73. He pointed out

the State even put on evidence to support the convictions. Id.

Fraiser testified he had a discussion with Gay about testifying in the guilt phase of the trial

and advised him there were certain things Gay would have to explain if he took the stand. ECF

No. 14-20, p. 275. Fraiser advised Gay not to take the stand during the guilt phase but to testify

during the sentencing phase. Id. Gay took his advice not to testify during the guilt phase but

then refused to testify in the sentencing phase. Id., p. 276.

25

Fraiser admitted no one asked the jurors if they could give meaningful consideration and

effect to any specific mitigators in the case. ECF No. 14-20, p. 291. However, Fraiser testified

this was because they did not know at that point whether Gay would testify as a sponsoring witness

“to a lot of stuff.” Id. When asked if he developed the mitigators before trial, Fraiser responded

it was a work in progress and some mitigators were obvious prior to trial but as “other stuff came

up” during the trial additional mitigators were submitted. Id. Defense counsel knew intoxication

would be an issue throughout the trial as well as Gay’s history of it. Id. Fraiser did not ask about

intoxication as a mitigator during voir dire because absent Gay’s testimony there would be no

evidence Gay had been drinking prior to killing Snow. Id., p. 292. From the State’s questioning,

Fraiser could also tell the State was anticipating if Gay took the stand, he was going to say he had

been drinking or was drunk at the time. Id., p. 293. Fraiser had no specific recollection of

reading Gay’s medical or mental health records but thought he had read the entire file. Id., p. 294.

Fraiser stated he would have “possibly” followed up with at least a consultation with an

expert had he known Gay had been diagnosed with PTSD and chronic alcohol abuse. ECF No.

14-20, p. 296. Fraiser testified that if Gay had disclosed he had been sexually assaulted, Fraiser

believes he would have sought an expert to determine if that would help Gay’s case. Id., p. 297.

Fraiser conceded Gay had signed releases for his medical, employment, and psychological records

prior to trial; subpoenas were issued but the subpoenas he was shown did not indicate if they were

for records. Id., pp. 300-01.

The State’s second witness was Hornibrook. ECF No. 14-20, p. 309. Hornibrook

testified the subpoenas shown to Fraiser were trial subpoenas. Id., p. 310. The medical and

mental health records had previously been obtained from these individuals. Id.

When asked how many times she attempted to persuade Gay to give her some information

26

on his background and what happened to him, Hornibrook answered: “Probably more times than

I could count.” ECF No. 14-20, p. 313. Gay would not participate in the conversations. Id., p.

314. With respect to Lindsay, Hornibrook testified she attempted to meet with Lindsay when

Lindsay visited Gay, but Lindsay refused to meet with Hornibrook. ECF No. 14-20, p. 314.

Most of the time, Lindsay would not take her calls. Id. At one point, Lindsay told Hornibrook

she would not cooperate with her. Id. Hornibrook offered to drive to Tennessee or to pay for

Lindsay to come to Arkansas. Id. At this point, Lindsay made it difficult by demanding they

transport her animals and to find a hotel that would take them that “it became almost an impossible

task” for Hornibrook. Id., p. 315. Any information Hornibrook obtained from Lindsay was

piecemeal. Id., p. 317. Lindsay finally told the defense about the sexual abuse just before trial.

Id. Defense counsel and Hornibrook did not inform Gay of the specific questions they planned

to ask Lindsay because defense counsel believed, and Hornibrook still believed, Gay would not

have wanted the information to come out. Id., p. 318.

Hornibrook believed she had done everything she could to investigate potential mitigation

circumstances. ECF No. 14-20, p. 318. On cross-examination Hornibrook stated she was aware

of the contents of Gay’s records and did not consult with any experts. Id.¸ p. 319. Hornibrook

did not believe Gay would have cooperated with an expert. Id., p. 321.

c. The Strickland Standard

The Sixth Amendment guarantees a criminal defendant “the right . . . to have the Assistance

of Counsel for his defense.” U.S. Const. amend. VI. “It has long been recognized that the [Sixth

Amendment] right to counsel is the right to the effective assistance of counsel.” McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970).

Ineffective assistance of counsel claims are analyzed under the standards set forth by the

27

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on his ineffective

assistance of counsel claims, Gay must prove, by a preponderance of the evidence, two related but

independent issues. First, Gay must show counsel’s performance was so deficient the

performance does not constitute counsel as guaranteed the defendant by the Sixth Amendment.

Id. at 687. Second, Gay must show counsel’s deficient performance materially and adversely

prejudiced the outcome of the case. United States v. Webb, 70 F.4th 1038, 1044 (8th Cir. 2023).

With respect to the first prong, “[w]hen a convicted defendant complains of the

ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell

below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. The Supreme

Court instructed:

Judicial 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. 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.

Id. at 689. A reviewing court “should recognize that counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. at 690. “The relevant question is not whether counsel’s choices

were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481

(2000).

With respect to the second prong, to prove an error was prejudicial Gay must establish

28

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “[N]ot every error that

conceivably could have influenced the outcome undermines the reliability of the result of the

proceeding.” Id. at 693. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. “Unless a defendant makes both showings, it cannot be

said that the conviction or death sentence resulted from a breakdown in the adversary process that

renders the result unreliable.” Id. at 687. “When the second element of this test can be

dispositive of a case, we need not address the reasonableness of the attorney’s behavior if the

movant cannot prove prejudice.” Webb, 70 F.4th at 1044 (internal quotation marks and citations

omitted).

“A federal habeas court’s review of a state court’s application of Strickland is doubly

deferential because it requires a highly deferential look at counsel’s performance through the

deferential lens of AEDPA. In other words, the doubly deferential standard gives both the state

court and the defense attorney the benefit of the doubt.” Roberts, 113 F.4th at 814 (internal

quotations, alterations, and citations omitted).

d. Discussion

Gay’s ineffective-assistance-of-counsel claim was addressed on the merits by the Arkansas

Supreme Court upon review of the denial of Gay’s Rule 37.5 petition. Gay v. State, 2022 Ark. 23

(2022) (Gay III). After reviewing the evidence presented at trial and during the Rule 37.5 hearing,

the Arkansas Supreme Court concluded:

Here, the jury heard an abundance of evidence about Gay’s childhood, such as

abuse by his father, sexual abuse by other children in the children’s home, and his

chronic alcohol abuse; however, it found that most of this evidence did not rise to

the level of a mitigating circumstance. Despite this, the jury found that “the

aggravating circumstances outweigh beyond a reasonable doubt any mitigating

29

circumstance found by any jury to exist.” Thus, Gay has failed to demonstrate that

there is a reasonable probability that, but for counsel’s failure to present testimony

from the doctors, the jury would have reached a different result, namely a sentence

of life imprisonment without parole. Therefore, we affirm the denial of relief on

this point.

Id., at 25.

While it is true that there was testimony about Gay’s childhood abuse, his father’s violent,

controlling, and manipulative behavior, and Gay’s alcohol use, there was no testimony about how

these factors could have adversely impacted Gay’s decision making and his actions at the time he

killed Snow or at the time he killed Glen or Kelly. It is one thing that the jury heard certain facts

occurred, but it is quite another to hear expert testimony on how the cumulative effect of these

occurrences impacted Gay’s general conduct and, more significantly, his conduct at the time he

murdered Kelly, Glen, and Snow. “Reasonable performance of counsel includes an adequate

investigation of facts, consideration of viable theories, and development of evidence to support

those theories.” Cagle v. Norris, 474 F.3d 1090, 1097 (8th Cir. 2007) (internal quotation marks

and citation omitted); see also Wiggins v. Smith, 539 U.S. 510 (2003) (counsel’s failure to expand

the investigation fell below professional standards and prejudiced the defendant). The

presentation of expert testimony regarding how Gay’s abusive life experiences combined with his

own alcohol abuse impacted Gay’s behaviors would have enhanced the jury’s decision making on

the mitigating factors as well as their balancing of whether the aggravating factors outweighed the

mitigating factors. In this case, the aggravating factors regarding the prior murder convictions

were particularly weighty making it even more important for the jury to have the benefit of

compelling expert testimony establishing a causal link between Gay’s conduct and his mental

health diagnoses.

Supreme Court cases “firmly establish[]” that “sentencing juries must be able to give

30

meaningful consideration and effect to all mitigating evidence that might be a basis for refusing

imposition of the death penalty on a particular individual, notwithstanding the severity of his crime

or his potential to commit similar offenses in the future.” Abdul-Kabir v. Quarterman, 550 U.S.

233, 246 (2007). With respect to expert testimony, the Supreme Court has said that

“[d]etermining whether a defense expert’s report or testimony would have created a reasonable

probability of a different result if it had been offered at trial necessarily requires an evaluation of

the strength of that report or testimony.” Thornell v. Jones, 602 U.S. 154, 164 (2024).7

6F

In Sears v. Upton, 561 U.S. 945, 956 (2010), the Court noted it had “never held that

counsel’s effort to present some mitigation evidence should foreclose an inquiry into whether a

facially deficient mitigation investigation might have prejudiced the defendant.” Id., at 956. In

Williams v. Taylor, 529 U.S. 362 (2000), the Court reiterated the proper standard in making the

prejudice determination in the context of a mitigation investigation was “the totality of the

available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas

proceeding in reweighing it against the evidence in aggravation.” Id., at 397-98; see also Porter

v. McCollum, 558 U.S. 30, 41 (2009) (proper standard for determining whether a defendant would

have received a different sentence was the totality of the evidence).

This Court believes Gay has established it was unreasonable for the Arkansas Supreme

Court to have concluded: (1) Gay had not overcome the strong presumption of competence; and

(2) Gay had failed to undermine confidence in the jury’s sentence of death. Cullen v. Pinholster,

7 In Thornell, the petitioner had murdered three members of the same family in heinous ways,

including a 7-year-old child who he dragged from under a bed, beat her, and ultimately asphyxiated

her, to obtain a $2000 gun collection which he sold to finance a trip to Las Vegas. The Supreme

Court held that in such a case “where the aggravating factors greatly outweigh the mitigating

evidence, there may be no ‘reasonable probability’ of a different result.” Thornell, 602 U.S. at

165.

31

563 U.S. 170, 189 (2011). Multiple considerations underlie this Court’s determination.

First, from Fraiser’s own testimony, he admitted if he had known Gay had been diagnosed

with PTSD and chronic alcohol abuse, he would have “possibly” consulted an expert. Further,

had Gay disclosed the prior sexual assaults, Frasier believed they would have consulted an expert.

See ECF No. 14-20, p. 297. The record available to defense counsel, much of which was obtained

by defense counsel, contained these diagnoses, the information about the sexual abuse, and more.

Hornibrook’s notes clearly reflect her knowledge regarding the sexual assaults. Hornibrook

testified that some of the records such as the records from the children’s home Gay and his sisters

resided in were no longer available, however other records, such as the ADC pen pack, were

available and indicated Gay had disclosed the sexual assaults. Neither Fraiser’s concerns about

the need to justify the expenditure of funds on experts nor his belief Gay might not participate in

an expert evaluation, should have precluded—at a minimum—a consultation with an expert to

determine the effectiveness of such testimony in Gay’s case. Considering what counsel knew, or

had in their possession, the decision to limit their investigation and not consult an expert was

unreasonable. As the Supreme Court stated in Strickland,

Strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitation on investigation. In

other words, counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.

466 U.S. at 690-91; see also Wiggins, 539 U.S. at 525 (“The scope of their investigation was also

unreasonable in light of what counsel actually discovered in the . . . records.”). There is, of course,

no specific requirement that counsel in all cases consult with an expert. Nevertheless, the Court

cannot say the defense team’s decision not to do so in this case was an informed or reasonable

32

strategic decision. See Nooner v. Norris, 402 F.3d 801, 808 (8th Cir. 2005) (“A particular

decision not to investigate must be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s judgments.”). Here, Fraiser’s own testimony

establishes he did not make a strategic decision not to consult an expert in connection with Gay’s

mental health diagnoses. See Johnson v. United States, 860 F. Supp. 2d 663 (N.D. Iowa 2012)

(The strength of the general presumption that counsel engaged in sound trial strategy turns on

adequacy of counsel’s investigation).

Second, from Hornibrook’s testimony and her notes it is clear she knew of Gay’s various

diagnoses. Further, her notes suggest Gay was at least cooperating to a certain extent. He signed

releases for his medical records; Hornibrook’s notes indicate either Gay was cooperating by

providing information about his past sexual abuse, childhood trauma, and his chronic use of

alcohol or she obtained this knowledge from his records. There are no notations in her notes

indicating Gay was refusing to cooperate or that she made any effort to consult with, let alone

retain an expert, or even considered how expert testimony could be used in either phase of the trial.

Third, the evidence provided by the experts at the Rule 37.5 hearing was compelling and

established a clear link between Gay’s conduct during the murders he committed in the past and

the one he stood accused of. The Court recognizes its obligation is not to rely on hindsight to

assess an attorney’s performance. In this instance, however, there was ample evidence known to

the defense team that should have at least compelled consultation with an expert. The evidence

would have been relevant both during the guilt phase and the penalty phase. The testimony of the

experts at the Rule 37.5 hearing demonstrates just how compelling the evidence would have been

in explaining to the jurors (1) the adverse effects Gay’s childhood trauma and exposure to violence

had on how he responded to stressful situations, (2) the adverse effects of his mental illness on his

33

behavior, and (3) the impact Gay’s severe alcohol abuse had to the prefrontal cortex of his brain

which inhibited Gay’s logical decision making. Cf. Thornell, 602 U.S. at 167 (“Because none of

Jones’s experts provided a real link between Jones’s disorders and the murders, their testimony

would have done him little good in the Arizona courts.” Citing Arizona cases holding that

evidence of causation was necessary before mental impairment can be considered a significant

mitigating factor.). Although deference must be given to strategic choices made by counsel, this

is true only after a thorough investigation of the law and facts relevant to plausible options has

been made. Strickland, 466 U.S. at 690 (strategic choices made after thorough investigation are

virtually unchallengeable as ineffective assistance of counsel); see also Williams v. Taylor, 529

U.S. 362, (2000) (Williams had a constitutionally protected right to provide mitigating evidence

that his trial counsel either failed to discover or failed to offer).

Fourth, while Gay had previously refused to cooperate with an expert, his refusal concerned

a mental competency examination and was the result of following the advice of his then counsel,

Sky Tapp. Neither Fraiser nor Hornibrook testified they had directly asked Gay whether he would

cooperate with an expert. Instead, they operated on an assumption based on Gay’s prior refusal

and his reluctance to speak about his past sexual abuse and his alcohol use. Additionally, there

was no testimony Gay was advised of the possible relevance of expert testimony on the evidence

introduced by the State as aggravators as well as the mitigating evidence they sought to introduce

through other witnesses, including Lindsay.

Fifth, this is not a case where counsel could utilize cross-examination to effectively

diminish the damaging evidence submitted by the State, with respect to the aggravating factors

and with respect to Snow’s death. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003) (counsel’s

failure to make a reasonable investigation of a defendant’s history and present this evidence at

34

mitigation can constitute ineffective assistance of counsel). Nor did the mere testimony of

witnesses about the circumstances of Gay’s upbringing and his alcohol use provide the depth of

knowledge expert opinion would have provided. As exhibited by the testimony at the Rule 37.5

hearing, the cohesive narrative established by the experts would have explained to the jurors why

Gay reacted the way he did with respect to Snow’s murder and the murders used as aggravating

factors and provide meaningful mitigation evidence.8 See Kenley v. Armontrout, 937 F.2d 1298

7F

(8th Cir. 1991) (counsel deficient in failing to present lay and expert mitigating evidence which

would have put defendant’s behavior in a more sympathetic light in the context of his family and

medical background). In other words, the testimony was essential for the jurors to consider when

determining Gay’s moral culpability.

Sixth, this is not the type of case where Dr. Mendel’s and Dr. Roache’s testimony could be

considered to be cumulative. No expert testimony was introduced regarding Gay’s diagnosis of

PTSD or alcohol abuse disorder. Cf. Reynolds v. Bagley, 498 F.3d 549 (6th Cir. 2007) (counsel

not ineffective for failing to retain expert where a psychologist testified regarding chronic

alcoholism, state of drunkenness at the time of the offense, and antisocial personality). No

testimony was offered that analyzed the impact of prior traumas on Gay’s conduct or the way

PTSD and alcohol use altered the way Gay thought and reacted to stressful situations. Instead,

8 The need for further investigation and expert testimony is perhaps no better underscored than by

reference to the jurors’ findings with respect to the mitigating factors. See e.g., ECF No. 14-3, p.

36-44 (#10—No member of the jury finds Gay had difficulties in efficiently taking in, processing,

and weighing information; #21—No member of the jury finds Gay’s chronic alcohol use is an

illness; #23—No member of the jury finds Gay’s capacity to conform his conduct to the

requirements of the law was impaired, regardless of whether his capacity was so impaired as to

constitute a defense to the charge; #24—No member of the jury finds Gay’s intellectual and

executive functioning abilities have been worsened by alcohol abuse; #48—No member of the jury

finds Gay was sexually abused as a child).

35

the testimony of the various lay witnesses underscored Gay’s inability to conform his conduct to

societal expectations.

Finally, to establish prejudice, Gay must show there was “a reasonable probability that,

absent [counsel’s] errors, the sentencer . . . would have concluded that the balance of the

aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695.

“A reasonable probability is a probability sufficient to undermine confidence in the outcome.

That requires a substantial, not just conceivable, likelihood of a different result.” Cullen v.

Pinholster, 565 U.S. 170, 189 (2011) (internal quotation marks and citations omitted). In other

words, “[w]hen a capital defendant claims that he was prejudiced at sentencing because counsel

failed to present available mitigating evidence, a court must decide whether it is reasonably likely

that the additional evidence would have avoided a death sentence.” Thornell, 602 U.S. at 171.

After a thorough review of the record, the Court concludes there is a reasonable probability that

admission of the mitigating evidence, particularly the testimony of experts, would have resulted in

Gay avoiding the death penalty. For the reasons stated, the ultimate conclusion of the Arkansas

Supreme Court was unreasonable in this case. Zornes v. Bolin, 37 F.4th 1411, 1415 (8th Cir.

2022) (The Court evaluates “the reasonableness of the state court’s ultimate conclusion, not

necessarily the reasoning used to justify the decision.”).

Having concluded Gay is entitled to relief on this claim, the Court need not address the

remaining sub-parts of Claim One.

B. Claim 2—Trial counsel rendered ineffective assistance in the pretrial period.

Gay maintains during the pretrial period, counsel provided ineffective assistance by

mishandling multiple aspects of voir dire and jury selection. He maintains his Sixth and

36

Fourteenth Amendment rights were violated by his counsel’s deficient performance. ECF No. 2,

p. 97.9

8F

1. Claim 2-2: Counsel failed to conduct an adequate voir dire to ensure that any

jurors could consider mitigating evidence

a. Arguments of the Parties

According to Gay, life qualification requires trial counsel to explain to potential jurors the

concept and application of mitigating evidence. ECF No. 2, p. 101. Following this, counsel must

verify potential juror’s views on mitigation and whether they can give meaningful consideration

to the mitigation offered. Id. Gay states no potential juror was asked if they could give

meaningful consideration to mitigation evidence, such as a history of substance abuse, childhood

trauma, and mental-health disorders. Id. Instead, the venire was “simply asked, in general terms,

whether they could consider mitigation evidence at sentencing. Such broad questioning does not

explore jurors’ views or understanding of mitigating evidence, and there is a substantial likelihood

that one or more mitigation-impaired jurors were seated as a result.” Id. It is pointed out that at

sentencing more than 70 potential mitigating factors were submitted without any juror having been

questioned about whether they could consider any of these potential circumstances. Id.

The State argues the Arkansas Supreme Court’s decision on this point is entitled to

deference. ECF No. 13, p. 106. The State contends counsel’s actions during voir dire are

presumed to be matters of trial strategy. Id., p. 107. Further, jurors are presumed to be impartial,

to follow the law as instructed by the trial court, and to comply with their oaths. Id. The State

9 The Court has previously held that Gay procedurally defaulted on claims 2-1 (unreasonably failed

to strike jurors who heavily favored the death penalty), 2-4 (failed to adequately rehabilitate jurors

who expressed reservations about imposing the death penalty), and 2-5 (counsel was ineffective

for failure to pursue a change of venue). ECF No. 58.

37

maintains “Gay has not alleged, much less demonstrated, that the state court’s adjudication of this

claim was contrary to clearly established federal law or that it applied clearly established law to

the facts of his case in an ‘objectively unreasonable manner.’” Id., p. 109.

b. Review of the Record

In Gay III, the Arkansas Supreme Court rejected Gay’s argument that Morgan v. Illinois,

504 U.S. 719 (1992), supported Gay’s argument concluding Morgan’s holding did not “stand for

the proposition that Gay should be allowed to question jurors about their views on ‘particular’

mitigators.” Gay III, 2022 Ark. 23, *12. The court then held:

Gay has not demonstrated that trial counsel’s performance was deficient under

Strickland. During the Rule 37 hearing, Fraiser testified the defense team scoured

the jury questionnaires and divided them into three stacks: good, questionable,

concerning. In the “concerned” stack were jurors that indicated they were pro-

death penalty. Fraiser testified that his strategy was to seat as many jurors “as

possible who would be bordering on being excluded because they could not

consider the death penalty.” Fraiser testified that his goal for these prospective

jurors was to get them to say they could consider the death penalty in order to

prevent the prosecution from striking them for cause. At trial, Fraiser asked the

jury mitigation specific questions, including, “Do you consider [the possibility of

life without parole] a severe punishment for a crime? and “Some people are of the

belief, because of religion, the way that they were raised, what they have read, life

experience, that if you take a life you should forfeit your life. Do you believe

that?”

Matters of trial strategy and tactics, even if arguably improvident, fall within the

realm of counsel’s professional judgment and are not grounds for finding

ineffective assistance of counsel. Hartman v. State, 2017 Ark. 7, 508 S.W.3d 28.

When a decision by trial counsel is a matter of trial tactics or strategy and that

decision is supported by reasonable professional judgment, then such a decision is

not a proper basis for relief under Rule 37. Van Winkle v. State, 2016 Ark. 98, 486

S.W.3d 778. We agree with the circuit court’s determination that Fraiser’s voir

dire was a matter of trial strategy. Finally, because Gay cannot demonstrate

deficient performance, we need not consider the prejudice prong in Strickland.

Id., at *12-13.

38

c. Discussion

The Supreme Court has emphasized the “importance of allowing juries to give meaningful

effect to any mitigating evidence providing a basis for a sentence of life rather than death.” Abdul-

Kabir, 550 U.S. at 260; see also Brewer v. Quarterman, 550 U.S. 286 (2007). As stated in Abdul-

Kabir, “the jury must be permitted to ‘consider fully’ such mitigating evidence and . . . such

consideration ‘would be meaningless’ unless the jury not only had such evidence available to it,

but also was permitted to give that evidence meaningful, mitigating effect in imposing the ultimate

sentence.” Abdul-Kabir, 550 U.S. at 260 (citation omitted).

Defense counsel did not ask during voir dire whether the jurors could give meaningful

consideration to specific mitigating factors, including Gay having had a traumatic childhood; his

being subjected to sexual abuse; his frequent exposure to violence; Glen’s and Gay’s chronic

alcohol abuse; and his mental health diagnoses. Additionally, with respect to some individual

jurors, defense counsel did not make a general inquiry about whether the juror would give

meaningful consideration to mitigating evidence. However, trial counsel submitted seventy-three

mitigating factors to the jury. At the beginning and the conclusion of the penalty phase, the jury

was instructed by the trial judge that “[a] mitigating circumstance is shown if you believe from the

evidence that it probably exists.” ECF No. 14-3, p. 25 (beginning); ECF No. 17-7, p. 69

(conclusion).

At the conclusion of the penalty phase, the Court then read each of the seventy-three

mitigating factors to the jurors. ECF No. 17-7, pp. 70-77. The mitigating factors were

coherently written, did not contain subparts or multiple factors, and permitted the jurors to consider

each factor separately. Cf. Johnson v. United States, 860 F. Supp. 2nd 663, 873-876 (N.D. Iowa

2012) (relief not granted because the issue was untimely; however, the court discussed the

39

prejudicial effect of poorly drafted multifaceted, overly complicated mitigating factors for the jury

to weigh). The jurors’ completion of the forms indicate the jurors found some of the mitigating

factors existed. ECF No. 14-3, pp. 35-49.

As the Eighth Circuit has noted, ineffective assistance of counsel claims are evaluated

using “a freeze frame—when the alleged poor performance occurred.” Deck v. Jennings, 978

F.3d 578, 583 (8th Cir. 2020). Fraiser testified it was undecided what mitigating factors would

ultimately be submitted to the jury during the penalty phase of the trial at the time voir dire was

conducted. Accordingly, the Court cannot say defense counsel acted deficiently in not

questioning potential jurors about certain mitigating factors, some of which had not been

determined by voir dire.

Furthermore, even if the Court assumes that Gay’s trial counsel performed deficiently

during voir dire, the Court does not believe Gay suffered any prejudice from this deficiency.

Strickland, 466 U.S. at 691-92. The prejudice prong of Strickland requires Gay to establish the

outcome of the proceeding would have been different but for counsel’s deficient voir dire

performance. No such showing has been made on this claim. It necessarily follows Gay has not

shown the decision of the Arkansas Supreme Court was contrary to, or an unreasonable application

of, federal law. Gay is entitled to no relief on this claim.

2. Claim 2-3: Counsel failed to object or move to disqualify jurors who stated they

would not consider intoxication as a mitigating factor

a. Arguments of the Parties

Gay argues counsel’s ineffective voir dire resulted in the seating of five jurors who stated

they would not consider intoxication as a mitigating factor. ECF No. 2, p. 104. Gay points out

that intoxication is a statutory mitigating circumstance. Ark. Code Ann. § 5-4-605(3). Gay

40

maintains that a total of five jurors, Randall Stacy, Brenda Frye, Frank Palmquist, Barbara Ritchey,

and Julia Holloway, all agreed a defendant should be held to the same punishment whether they

committed the crime while sober or while intoxicated.10 Gay maintains Frasier’s failure to

9F

challenge and seek removal of these mitigation-impaired jurors was unreasonable, particularly

because intoxication would be listed as a mitigating factor. ECF No. 2, p. 104-05. Had counsel

sought to seat a jury who could meaningfully consider intoxication or alcoholism as a mitigating

factor, Gay argues there is a reasonable probability the jury would have returned a lesser sentence.

Finally, Gay asserts this issue was raised in the appeal to the Arkansas Supreme Court but not

addressed. Thus, Gay maintains the court’s review is de novo.

The State maintains Gay’s argument is at least partially based on a misreading of Morgan

v. Illinois, 504 U.S. 719 (1992). ECF No. 13, pp. 116-117. In the State’s view, Morgan does not

stand for the proposition that jurors must be struck for cause because they decline to give weight

to one mitigating factor. Rather, the State argues a juror’s responses during voir dire must be

considered as a whole. When reviewed in this manner, the State maintains the jurors agreed they

would consider mitigating evidence in reaching a verdict on the appropriate sentence. Moreover,

the State urges the Court to find Gay has failed to demonstrate Strickland prejudice—that, but for

the seating of the jurors in question, the outcome of his trial would have been different.

b. Review of the Record

Jurors Palmquist, Ritchey, and Holloway, were called up in a panel of three. ECF No. 14-

5, p. 288. When conducting voir dire for the State, the prosecutor’s first question was: “[W]ith

10 Specially, Gay alleges Stacy and Frye answered “no” when asked whether a defendant’s

punishment should be less if they committed the crime while intoxicated. The remaining three

jurors agreed a defendant should be held accountable regardless of intoxication the same way as

they had committed the act while sober. Intoxication should not be an excuse.

41

regard to alcohol use, do either of you ladies or you, sir, feel like somebody who’s been drinking,

voluntarily gets intoxicated should not be held responsible for their actions?” Id., p. 290. All

three jurors shook their heads. He then asked: “If you do something illegal while you’re drunk,

should you be held accountable for it?” Id. All three jurors answered: “Yes.” Id. The

prosecutor then added: “The same way if you had done it sober. Should not be an excuse.” Id.

A short time later, the prosecutor asked the jurors if each could consider both the death penalty

and life without parole and decide which was appropriate based solely on the facts heard and the

evidence admitted. Id., p. 293. Each said they could. Id. All three said they could envision a

set of circumstances warranting a sentence of death and one of life without parole. Id., pp. 294-

96.

When conducting its voir dire, defense counsel asked Palmquist, who indicated on a

questionnaire that he strongly supported the death penalty, whether he would consider both

aggravating factors and mitigating factors before making his decision. ECF No. 14-5, p. 305-06.

Ritchey also indicated on the juror questionnaire that she strongly supported the death penalty.

Id., p. 310. However, she indicated she thought life without the possibility of parole was a serious

sentence. Id. No questions were asked regarding whether she could consider mitigating

circumstances. Holloway also indicated she strongly supported the death penalty in response to

the questionnaire. Id., p. 311. She indicated she could consider life without the possibility of

parole. Id., pp. 311-12. No questions were asked regarding mitigating circumstances. The

defense did not challenge these three jurors for cause. Id., p. 316.

Jurors Frye and Stacy were called up as part of a panel of three. ECF No. 14-5, p. 484.

The prosecutor’s first question to the panel was: “[D]oes anybody think someone who’s been using

alcohol and becomes intoxicated should still be held responsible for their actions? If they violate

42

the law, they still should be held accountable?” Id., p. 487. Frye and Stacy both responded:

“Yes.” Id. His next question was: “Does anybody think that their punishment should be less

because they chose to get drunk and do this than somebody who did something while they were

sober?” Id. Both Frye and Stacy responded: “No.” Id.

The prosecutor went on to explain to the jurors that this was a bifurcated trial and the case

would proceed to the sentencing phase only if the defendant was found guilty of capital murder.

ECF No. 14-5, p. 490. He explained the State would present evidence of statutory aggravating

factors that might justify the death penalty, while the defense would put on evidence of mitigating

factors, or any reason the death penalty should not be imposed. Id., p. 490-91. The jurors were

told that only if they found the aggravating factors outweighed the mitigating factors, would they

be asked to impose the death penalty. Id. Stacy and Frye said they had no problem with having

to weigh the aggravators and the mitigators. Id., p. 492. They understood if they found the

aggravators outweighed the mitigators their verdict would be death. Id., p. 492. While if they

found the opposite way—that the mitigators outweighed the aggravators—the verdict would be

life. Id., p. 493. Frye and Stacy each indicated they could envision circumstances under which

both penalties would be appropriate. Id., p. 494.

Frye was next asked about her response indicating she moderately supported the death

penalty. ECF No. 14-5, p. 495. She indicated it depended on the facts and circumstances of the

crime. Id. She also indicated she would follow the judge’s instructions on the law. Id. Next,

Stacy was asked about his response that he moderately opposed the death penalty. Id., p. 496.

While Stacy did not know if the death penalty was really a deterrent to crime, he stated he did

believe in the death penalty. Id., p. 497. He understood the death penalty was an available

43

punishment. Id. He said he could vote for the death penalty or for life imprisonment. Id., p.

498.

When these jurors were being questioned by the defense, Frye was asked about her belief

that life imprisonment was not a serious punishment. ECF No. 14-5, p. 506. However, Frye

indicated she would not have a problem choosing a sentence of life without the possibility of parole

over the death penalty. Id. Stacy agreed he would not have a problem choosing a life sentence.

Id. After Frye indicated she would expect the defense team to prove Gay did not commit the

crime, she indicated if the defense rested without presenting witnesses it would not necessarily

suggest to her that Gay was guilty. Id., pp. 507-08. Neither juror was asked any questions about

mitigating evidence.

On further voir dire, the prosecutor clarified with Frye that the defense had no burden of

proof on the issue of guilt or innocence. ECF No. 14-5, p. 510. When asked if she would have

a problem voting for life if the State had not proven beyond a reasonable doubt that the aggravators

outweigh the mitigators, Frye testified she would have no problem. Id. No challenges for cause

were made with respect to Frye and Stacy. Id.¸ p. 512-14.

At the Rule 37.5 hearing, Professor Sullivan indicated that asking a juror if he or she could

give meaningful consideration and effect to intoxication as a mitigating factor was a proper

qualifying question rather than a “fact-qualifying” question. ECF No. 14-20, p. 125-128.

Professor Sullivan indicated this was a particularly troublesome issue because voluntary

intoxication is not a defense to a crime but is a statutory mitigating factor in capital cases. Id., p.

126. He pointed out there are many jurors, like several of the responses made by jurors in the

Gay case, who believe if you are intoxicated “you don’t deserve any special leniency because you

were intoxicated; but moreover, they would never consider that as a possibility for mitigation even

44

if there’s considerable evidence produced at trial, because they just think that’s not gonna be

something that would warrant consideration for leniency.” Id.

In Professor Sullivan’s opinion, any juror who believed he could not consider intoxication

as a mitigating factor was “mitigation impaired.” ECF No. 14-20, p. 129. To effectively conduct

capital voir dire, Professor Sullivan believed defense counsel “must ask case-specific mitigator

questions; in other words, in this case, ‘Can you give meaningful consideration and effect to

intoxication as a mitigating factor.’” Id. In Professor Sullivan’s review of the trial record,

defense counsel did not ask any jurors if they could give meaningful consideration and effect to

any mitigating circumstance. Id. at 130. If defense counsel was prevented from asking these

questions, a proffer should have been made. Id. The failure to make a record, including a

proffer, was in Professor Sullivan’s opinion “defective performance on the part of counsel.” Id.,

p. 131.

Professor Sullivan was asked specifically about jurors Frye and Stacy. ECF No. 14-20 at

132. Professor Sullivan noted Frye and Stacy essentially said on the front end, “No, nobody gets

a break in the sentencing because they were intoxicated.” Id., p. 133. In other words, they had

already indicated they will not consider “a life sentence based upon mitigation evidence by

intoxication.” Id., p. 134. In Professor Sullivan’s view, this was an attempt by the State to try to

persuade the jury that intoxication was not a mitigating factor. Id. As it stood, without further

questioning, Professor Sullivan believed “these jurors should not have been allowed to sit” on the

jury. Id. Professor Sullivan indicated the State had received similar commitments from other

jurors. Id., pp. 135-36.

In the Rule 37.5 Petition, Gay asserted an ineffective assistance of counsel claim based on

trial counsel’s failure to object to, or move to disqualify, at least five jurors who stated, in response

45

to the State’s voir dire, they would not consider intoxication as a mitigating factor. Id., p. 38. In

Gay III, in ruling on the ineffective assistance of counsel claims, the Arkansas Supreme Court did

not separately address the arguments made with respect to the seating of these five jurors. Gay

III, 2022 Ark. 23, *11-13.

c. Discussion

The parties disagree over the significance of the decision in Morgan v. Illinois, 504 U.S.

719 (1992), on the current issue. In Morgan, the Supreme Court was asked to decide “whether,

during voir dire for a capital offense, a state trial court may, consistent with the Due Process Clause

of the Fourteenth Amendment, refuse inquiry into whether a potential juror would automatically

impose the death penalty upon conviction of the defendant.” Id. at 721. The State asked, in

accordance with Witherspoon v. Illinois, 391 U.S. 510 (1968), inquiry be made to determine

“whether any potential juror would in all instances refuse to impose the death penalty upon

conviction of the offense.” Morgan, 504 U.S. at 722. Each juror was asked if he or she had any

moral or religious principles that would mean the juror could not impose the death penalty

regardless of the facts. Id. The defense asked for the following “life qualifying” or “reverse-

Witherspoon” question to be asked: “If you found Derrick Morgan guilty, would you automatically

vote to impose the death penalty no matter what the facts are?” Id. at 723. The trial court refused

on the grounds it had “asked the question in a different vein substantially in that nature.” Id.

The Court noted Illinois had set up its capital sentencing scheme so that a jury determined

both guilt and whether the death penalty should be imposed on a capital defendant. Morgan, 504

U.S. at 726. As described, the sentencing scheme is the same as that employed in Arkansas,

although voir dire in Illinois was carried out by the court. Id. at 722.

46

The Court found the petitioner entitled to relief under the Due Process Clause of the

Fourteenth Amendment. Morgan, 504 U.S. at 722. The Court said it has been decided as early

as 1807 that “a juror who has formed an opinion cannot be impartial.” Id. at 727 (internal

quotation marks and citations omitted). The Court stated it had decided in Wainwright v. Witt,

469 U.S. 412, 424 (1985), “‘the proper standard for determining when a prospective juror may be

excluded for cause because of his or her views on capital punishment . . . is whether the juror’s

views would prevent or substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath.’” Id. (citation omitted). The Court reiterated “[a] juror who

will automatically vote for the death penalty in every case will fail in good faith to consider the

evidence of aggravating and mitigating circumstances as the instructions require him to do.” Id.

at 729.

The Court discussed the importance of voir dire stating

“[v]oir dire plays a critical function in assuring the criminal defendant that his

[constitutional] right to an impartial jury will be honored. Without an adequate

voir dire the trial judge’s responsibility to remove prospective jurors who will not

be able impartially to follow the court’s instructions and evaluate the evidence

cannot be fulfilled.” Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981)

(plurality opinion). Hence, “[t]he exercise of [the] trial court’s discretion, and the

restriction upon inquiries at the request of counsel, [are] subject to the essential

demands of fairness.” Aldridge v. United States, 238 U.S. 308, 310 (1931).

Morgan, 504 U.S. at 729-30 (parallel citations and footnote omitted).

The issue before the Court centered on the “petitioner’s ability to exercise intelligently his

complementary challenge for cause against those biased persons on the venire who as jurors would

unwaveringly impose death after a finding of guilt.” Morgan, 504 U.S. at 733. The Court

concluded it was constitutionally required that petitioner be able to “challenge for cause . . . those

prospective jurors who would always impose death following conviction, [or] his right not to be

47

tried by such jurors would be rendered as nugatory and meaningless as the State’s right, in the

absence of questioning, to strike those who would never do so.” Id. at 733-34 (emphasis in

original). It stated jurors who would impose the death penalty regardless of mitigating facts

“obviously deem mitigating evidence to be irrelevant to their decision to impose the death penalty:

They not only refuse to give such evidence any weight but are also plainly saying that mitigating

evidence is not worth their consideration and that they will not consider it.” Id. at 736.

Here, the State asserts Morgan has no application outside its precise holding—that criminal

defendants must be allowed to ask jurors if they will consider a life sentence. In short, the State

maintains Morgan has no applicability to case-specific voir dire questions. Whereas Gay argues

Morgan stands for the broader proposition that any juror who states he or she will not consider a

statutory mitigating circumstance is not impartial. From this, Gay argues it necessarily follows

that counsel’s failure to voir dire the jurors on their ability to consider intoxication as a mitigating

factor constitutes an inadequate voir dire in violation of the Constitution, amounting to the

ineffective assistance of counsel.

In United States v. Johnson, 366 F. Supp. 2d 822 (N.D. Iowa 2005), a United States District

Court for the Northern District of Iowa undertook a thorough review of the case law to determine

“what degree of case-specific questioning, if any, is permissible in the course of life- or death-

qualifying prospective jurors.” Id. at 826. The Johnson case was before the court at the pretrial

stage for determination of the scope of voir dire with respect to case-specific questions. The

Johnson court noted that while Morgan did not involve the issue of the “propriety or impropriety

of case-specific voir dire, the Morgan decision is nevertheless instructive on the proper role of

voir dire in capital cases.” Id. “Thus, the vexing question left unanswered in Morgan is whether

any case-specific inquiry is appropriate to determine whether a juror can truly consider both a life

48

and a death sentence in a particular case—in other words, can a determination be made on a juror’s

ability to impose either sentence no matter what the facts are, or regardless of the facts and

circumstances of conviction, without some inquiry into the juror’s response to the facts of the

particular case.” Id. at 831.

After reviewing applicable case law, the Johnson court determined there were “five

categories of ‘Morgan questions’: (1) ‘abstract’ questions; (2) ‘defendants status’ questions;

(3) ‘case-categorization’ questions; (4) ‘case-specific’ questions; and (5) ‘stake-out’ questions.”

Johnson, 366 F. Supp. 2d at 834-35. The court noted the cases, including Ramsey v. Bowersox,

149 F.3d 749 (8th Cir. 1998), routinely found the “abstract” questions were permissible and

satisfied Morgan’s constitutional standard. Johnson, 366 F. Supp. 2d at 835.

Category four—case-specific questions were defined as “questions that ask whether or not

jurors can consider or would vote to impose a life sentence or a death sentence in a case involving

stated facts, either mitigating or aggravating, that are or might be actually at issue in the case that

the jurors would hear.” Johnson, 366 F.Supp.2d at 840. The court acknowledged the “clear

majority of courts reject ‘Morgan questions’ with any degree of case specificity.” Id. However,

it found “a glaring fallacy in most of the decisions excluding any and all ‘case-specific’ questions,

of whatever type identified above, purportedly on the authority of Morgan: These questions

simply are not precluded by Morgan, because Morgan never addressed the propriety of any case-

specific questions.” Id. at 844. The court believed the correct question was “whether ‘case-

specific’ questions, of any of the types identified above, are appropriate under Morgan—even

though they are not required by Morgan—to provide the parties with an adequate opportunity to

voir dire prospective jurors for the purpose of empaneling a fair and impartial jury.” Id. at 844-

45. The Johnson court decided “while Morgan does not require ‘case-specific’ questioning of

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prospective jurors to satisfy constitutional requirements for life- and death-qualifying prospective

jurors, ‘case-specific’ questions [were] nevertheless appropriate—indeed, necessary—to empanel

a fair and impartial jury” in the case before it. Id. at 848.

The question here is whether Gay was denied his Sixth Amendment right to counsel when

counsel failed to question these five jurors about their willingness to consider intoxication as a

mitigating factor in response to their verbal commitment to the State that they did not consider

intoxication to be a defense to a criminal act or to lessen the punishment imposed. There is no

constitutional right to ask about each case-specific mitigating circumstance. However, when the

jurors have made a specific commitment to the State not to consider intoxication to lessen the

punishment imposed, it was incumbent on counsel to ensure these same jurors were willing to

consider intoxication as a mitigating factor. Voir dire is especially crucial in a capital case to

identify those jurors who will give meaningful consideration to both aggravating and mitigating

factors. Failing to ask about the jurors’ willingness to consider intoxication as a mitigating factor

was a serious error in judgment that cannot be categorized as reasonable or within the rubric of

being a trial tactic or strategy. Instead, this error fell below prevailing professional standards for

capital counsel at the time. As the Arkansas Supreme Court noted: “Gay’s alcohol abuse was a

consistent theme in his trial.” Gay III, 2022 Ark. 23, *22. Gay has demonstrated defense

counsel’s performance was deficient, meaning “counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at

687.

Next, Gay must demonstrate prejudice. “When a defendant challenges a death

sentence . . . the question is whether there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances

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did not warrant death.” Strickland, 466 U.S. at 695. Morgan and its’ progeny do not provide

any definitive answer as to when case-specific mitigating questions are appropriate. Morgan,

however, does serve to underscore the importance of voir dire in a capital murder case. The Court

stated “[v]oir dire plays a critical function in assuring the criminal defendant that his

[constitutional] right to an impartial jury will be honored.” Morgan, 504 U.S. at 729. As is

evidenced from the voir dire set forth above, the State asked for more than a commitment that the

jurors would not consider intoxication as a defense in the guilt phase of the trial, the State’s

questioning also intruded into the punishment phase of the trial. Cf., Martinez v. Dretke, 426 F.

Supp. 2d 403, 462 (W.D. Texas 2006) (no prejudice found from defense counsel’s voir dire where

jury faced “no specific issues regarding the ‘mitigating’ effect of any evidence of petitioner’s

youth, intoxication, or difficult childhood until the punishment-phase of trial.”). In this case,

when these five jurors had committed to the State not to allow intoxication to lessen the available

punishment, Gay was clearly prejudiced by the failure of his defense team to follow-up with

questions to ensure the jurors would consider intoxication as a mitigating factor. This is not a

situation where the jurors’ general commitment to consider mitigating factors was sufficient. The

State had essentially already obtained their commitment not to consider one statutory mitigator—

intoxication. Gay is entitled to relief on this claim.

C. Claim 3—Trial counsel rendered constitutionally ineffective assistance at the guilt

phase of Gay’s trial

Gay contends he was denied effective legal representation during the guilt phase of his

capital trial. Gay asserts two separate claims. First, he contends defense counsel failed to object

to the state’s improper guilt phase closing argument. Second, he contends his counsel failed to

investigate and pursue a theory of imperfect self-defense or proffer a self-defense instruction.

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1. Claim 3-1: Counsel failed to object to the state’s improper guilt phase closing

arguments

a. Arguments of the Parties

Gay asserts the prosecutor repeatedly made inflammatory statements during the closing

argument of the guilt phase of the trial and dramatized descriptions of the crime in such a way to

prejudice him. ECF No. 2, p. 111. Gay maintains the highly sensationalized comments likely

had a significant impact on the jury’s decision. Id. Gay identifies the following statements made

by the prosecutor: (1) after Gay shot Snow “he picked her up like a dead deer and chunked

her . . . into the back of his truck,” (2) Gay then drove a mile away and “chunked” her onto an

unmarked road where “animals could eat her;” and (3) after Gay shot Snow, he “push[ed] her up

on his knee like she’s a dead animal” and “chunk[ed] her into the back of his truck.” Id. Gay

maintains counsel acted unreasonably in failing to object to the sensationalized account. First,

Gay argues the “statements instilled into the jury’s mind the image of a heartless killer handling

the victim like a dead animal.” Id. Second, and in Gay’s view more importantly, without such

comments there was a reasonable likelihood the jury would have returned a lesser verdict. Id.

Gay states only one eyewitness, Rickey Stewart, provided evidence Gay acted with premeditation

and deliberation. Id. Gay argues other evidence suggests he may have acted in self-defense or

believed he was acting in self-defense. Id.

The State maintains Fraiser made a rational strategic decision not to object to the

statements. ECF No. 13, p. 130. The State maintains the Court should defer to the decision of

the Arkansas Supreme Court. Id., p. 131. Even a sustained objection would not, in the State’s

view, alter the outcome of the trial. Id. Thus, even if Gay could establish the deficient

performance prong of Strickland, he cannot establish the prejudice prong. Id.

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b. Review of the Record

At trial, James Westlake (“Westlake”) testified he did not actually witness Gay shoot Snow,

but he turned around when he heard a blast and Gay was holding a shotgun and Snow’s body was

on the ground. ECF No. 14-6, p. 30. Gay then walked over and asked Westlake if he had any

plastic. Id., p. 33. When Westlake stated he did not, Gay turned and walked back to the truck.

Id. When Gay could not get the tailgate open on the truck, he asked Westlake for help. Id., p.

34. Westlake walked over and bumped the tailgate with his hand, and it opened. Id. Westlake

turned and went to check on his father. Id. Westlake testified that next Gay “brings her back –

drags her back to the truck and then loads her in the back-end of the truck.” Id., p. 36. Westlake

testified Gay was just dragging Snow “by the back of the neck or back of the head or something.

He’s just dragging her.” Id. When he got to the back of the truck, Gay “rolled her up on his

knees like and then rolled her into the in the back of the truck.” Id., p. 37. When asked how Gay

picked Snow up, Westlake testified Gay “just reached down and grabbed her, I think at the belt

loop kinda, and then the back of the head with the hair or something, and lifted her up and put her

in the back of the truck.” Id. Gay then turned his pickup around and, on his way back by, gave

Westlake a thumbs up. Id.¸ p. 38.

Ricky Stewart (“Stewart”) testified he was working for the Westlakes on May 10, 2011; he

was at the equipment site with Westlake. ECF No. 14-6, p. 87. Shortly after 5:00 p.m. that day,

he and Westlake were attempting to jump start a skidder. Id., p. 89. Stewart was sitting in the

seat of the skidder approximately six or seven feet off the ground. Id., p. 91. Stewart was

approximately fifteen to twenty feet from Gay’s truck. Id. When Gay first arrived at the site he

came over and was talking to Westlake. Id., p. 92. Stewart heard Gay tell Westlake that Snow

was going to jail, but she did not know it. Id., p. 93. Gay indicated she was associated “with that

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bunch over there” and gestured with his head. Id. Snow denied she was associated with anyone.

Id. Gay turned around, hollered “[y]ou got a f-----’ problem,” returned to the truck, and retrieved

a bolt action gun out of the toolbox on the back of the pickup. Id., p. 94. Initially, Gay stuck the

gun in the driver’s side window and told Snow to get out of the truck. Id. Then he walked to the

back of the truck and hollered: “I told you to get the f--- outa my truck.” Id. Gay then leaned on

the side of the truck, put his elbow on the bed of the truck, and aimed the gun at Snow. Id. at 94-

95. Stewart testified “she stepped outa the truck, [with] her back to the inside of the door.” She

said, ‘What are you gonna do, shoot me:’” Stewart heard the safety click off, and Gay “shot her.”

Id., p. 95. Afterwards, Gay first asked Westlake for plastic and then asked him for help opening

the tailgate. Id., pp. 97-98.

Stewart witnessed Gay drag Snow to the back of the truck “[b]y the hair of the head and

loops on her pants.” ECF No. 14-6, p. 99. After Gay got to the back of the truck, Stewart quit

watching. Id. Stewart testified Gay was acting “[p]retty much like nothing happened.” Id.

Special Agent Charles S. Falls (“Falls”) testified he interviewed Gay the day he was

arrested. ECF No. 14-6, p. 186-87. When Falls questioned Gay regarding Snow, Falls testified

Gay “went back and forth between two positions. The first, he said that he had been drinking and

he could not remember what he had done. And then he would also then maintain that he spent

the whole afternoon in Mountain Pine at Mr. Nevels’ place.” Id., pp. 195-96.

Falls testified Snow’s body was discovered, approximately 1.2 to 1.3 miles from the site

of her death, on May 14th—four days after the homicide. ECF No. 14-6, p. 213. It was found

on “what was described as a Jeep trail” that wound around a “bit until it crossed a creek.” Id., p.

214. Falls testified: “Ms. Snow’s body was found lying in the creek on top of some rocks that

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rose above the creek. . . . [A]pproximately twenty-three feet or so from the body, we located Ms.

Snow’s hair and her scalp.” Id.

Chief Deputy Prosecuting Attorney Michelle Lawrence gave the closing argument for the

State. ECF No. 14-6, p. 496. During the closing, she stated:

We have eye witnesses who saw her fall into a heap. Blood come out of her head.

You have witnesses who tell you that he picked her up like a dead deer and chunked

her, after he drug her, and he chunked her into the back of his truck. Then you

hear from witnesses that she was found over a mile away on an unmarked road that

the Forest Service doesn’t even keep up anymore. Chunked out there so that she’s

bleeding, she’s sustained a bloodshot – or a gunshot wound to the face, she’s

bleeding, and she’s left there for four days so animals could eat her.

Id.¸ p. 504. Later, she said:

You have two eyewitnesses. He didn’t deny it and you have physical evidence.

Her blood on his boot. Her blood at the scene. Her blood in the back of his truck

where he threw her up there like an animal to only dump her in the woods so she

would rot.

Id., p. 506.

When she was speaking to the jury regarding premeditation versus a sudden impulse, she

said:

You heard the testimony of the M.E. She was rendered unconscious immediately.

She’s sitting there in a pool of blood. He walks back around the truck, “Hey James

you got any plastic?” Do you have any plastic? “No, man, I just got the shirt off

my back.” “Well I need a little help with this tailgate.” It’s like he’s just killed a

deer and, how fitting, that he uses a shotgun with buckshot to kill her.

So what did he do? Mr. Westlake goes and hits the back of the truck. It falls

down. He walks off. Then you see the Defendant, based upon all of the evidence,

go and start dragging her by her hair. Pulling her, pulling her, pulling her. Gets

her around, then takes a belt loop in her shirt, pushes her up on his knee like she’s

a dead animal, to which he then picks her up, chunks her into the back of his truck.

“See you guys later,” turns around and on the way out lights up a cigarette and gives

a thumbs up. He has just blown a woman’s brains out.

Step by step, choice by choice, thought by thought. And then what did he do to her

afterwards? He takes her off – he lived in the woods and she lived in the woods –

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takes her off in the back woods by a creek with awful roads on a jeep trail and

dumps her out like an animal. Blood. Like an animal.

And then he gives Mr. Westlake a call. “We okay, buddy.” “I got it taken care

of.” Does that sound like somebody who operated on a sudden impulse? I submit

to you, definitely not.

ECF No. 14-6, pp. 510-11.

In Gay III, the Arkansas Supreme Court addressed this claim on the merits. Gay III, 2022

Ark. 23, *17. “A reversal of a judgment due to remarks made by counsel during closing

arguments is rare and requires that counsel make an appeal to the jurors’ passions and emotions.

Experienced advocates might differ about when, or if, objections are called for since, as a matter

of trial strategy, further objections from counsel may result in comments seeming more significant

to the jury.” Id. (citations omitted). The Arkansas Supreme Court reviewed the comments Gay

argued were overly inflammatory and that he contended established a “reasonable probably that

the jury would not have sentenced him to death had counsel objected.” Id., *18. The Court

stated:

We agree with the circuit court’s determination that trial counsel’s decision not to

object during the State’s closing argument was a matter of trial strategy. At trial,

two witnesses testified that Gay shot Snow, he dragged her to the back of his truck

by her hair and belt loops, rolled her up on his knee, and put her in the back of his

truck. Additionally, medical examiner Dr. Charles Kokes testified that when

Snow’s body was recovered, bones and tissue were missing from her face, which

could have been caused by animal activity. We cannot say that the circuit court’s

findings in this regard were clearly erroneous.

Id.

c. Discussion

Considering the weight of the evidence, this Court cannot say trial counsel’s failure to

object to this characterization satisfied the deficient performance prong of Strickland. As the

Arkansas Supreme Court noted, there are many reasons for counsel not to interject an objection

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during the State’s closing argument. In this case, such an objection likely would have served to

underscore the characterization in the jurors’ minds. Reasonable jurists could find Gay’s conduct

invited the prosecutor’s comments.

With respect to the prejudice prong, the Court finds it helpful to review the case law

regarding when statements by the prosecutor can result in an unfair trial. “As a general rule,

prosecutorial misconduct does not merit federal habeas relief unless the misconduct infected the

trial with enough unfairness to render petitioner’s conviction a denial of due process.” Louisell

v. Dir. Of Iowa Dep’t. of Corr., 178 F.3d 1019, 1023 (8th Cir. 1999) (internal quotation marks,

alterations, citation omitted); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(prosecutor’s comments violate the Constitution only if they “so infected the trial with unfairness

as to make the resulting conviction a denial of due process.”) (quotations and citations omitted).

To be entitled to relief, Gay “must show that there is a reasonable probability that the error

complained of affected the outcome of the trial—i.e., that absent the alleged impropriety the

verdict would probably have been different.” Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.

1995).

Three factors are considered to determine whether prosecutorial misconduct rises to the

level of a denial of due process: (1) the cumulative effect of the misconduct; (2) the strength of the

properly admitted evidence of the defendant’s guilt; and (3) the curative actions taken by the

district court. Graves v. Ault, 614 F.3d 501, 508 (8th Cir. 2010) (citation omitted).

In this matter, the evidence of Gay’s guilt was overwhelming. There were two

eyewitnesses who testified consistently regarding Gay’s murder of Snow; the gun used to murder

Snow was in Gay’s possession when located by law enforcement; and Snow’s blood was

discovered in Gay’s pick-up. Gay cannot establish the prejudice prong of Strickland, that is,

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“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 688. A sustained objection

would not have altered the outcome of the guilt phase of the trial. The Court finds the decision

of the Arkansas Supreme Court was neither contrary to nor an unreasonable application of clearly

established federal law.

2. Claim 3-2: Counsel failed to investigate and pursue a theory of imperfect self-

defense or proffer a self-defense instruction

a. Arguments of the Parties

Gay notes his counsel moved for a directed verdict on the capital murder charge arguing

lack of premeditation and deliberation. ECF No. 2, p. 112. Based on the evidence in counsel’s

possession, Gay argues there was enough evidence to raise a theory of imperfect self-defense, and

his counsel was ineffective for failing to do so.

Gay emphasizes evidence was admitted that there was a knife in the truck’s center console

when the truck was seized. ECF No. 2, p. 112. Additionally, Gay made multiple statements after

the murder that Snow had threatened him with a knife. Id. Specifically, Gay points to the

following statements: (1) in a November 2011 interview with Tapp, Gay stated, prior to the murder,

he caught Snow in his trailer trying to rob him. Later, when they were at the Westlakes’ and Gay

ordered Snow out of the car, Gay said Snow “spun around with a knife” and he shot her; (2) in an

interview with his defense team in October 2014, Gay again claimed Snow had broken into his

trailer and he planned to take her in for robbing him. Then at the Westlakes’, Gay stated Snow

started mouthing off and pulled a knife causing him to shoot her; and (3) in a prisoner medical

treatment report, Gay said he had been arrested because “a woman tried to stab him.” Id., pp.

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112-13. Based on these statements, Gay contends there was enough evidence to at least present

some theory to the jury as to what prompted Gay’s actions. Id., p. 113.

According to Gay, even if his defense team believed there was no way to present the

evidence Snow threatened him, there was substantial evidence he acted recklessly and

spontaneously. Id., p. 113. Specifically, Gay refers the Court to evidence in his prison medical

record showing he was diagnosed with PTSD and alcohol dependence. Id. Gay then asserts that

had counsel obtained an expert he would have known these disorders cause hyperactivity, lack of

impulse control, and heightened emotional arousal— “‘a perfect storm’ of emotional, irrational

reactions.” Id. at p. 114.

The State argues this court should defer to the ruling of the Arkansas Supreme Court. ECF

No. 13, p. 138. They point out that in Arkansas, a person is justified in using “deadly physical

force on another if that person reasonably believes that the other is committing or about to commit

a felony involving physical force or violence, using or about to use deadly physical force, or

imminently endangering the person’s life or imminently about to victimize the person from the

continuation of a pattern of domestic abuse.” Id., pp. 138-39 (citing Ark. Code Ann. § 5-2-

607(a)(1)-(3) (Supp. 2009)). When a defendant recklessly or negligently forms the belief that

physical force is necessary, the State indicates this is what is referred to as “imperfect self-

defense.” Id.¸ p. 139. If it is unlikely that self-defense will be a successful strategy, the State

argues defense counsel is not ineffective for failing to pursue it. Id. Likewise, if there is no basis

to support the giving of an instruction, counsel is not ineffective for failing to request it. Id.

While a knife was found in the center console, the State asserts there was no evidence Snow

wielded it, attempted to reach for it, or even knew it was there. Id., p. 140. Finally, with respect

to Gay’s claim that he acted “recklessly and spontaneously due to his diagnoses,” the “evidence at

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trial established Gay act[ed] in a calm and deliberate manner, not hyperactive or impulsive, or

emotional.” Id., p. 140-41.

b. Review of the Record

At the Rule 37 hearing, Fraiser was asked about co-counsel Crawford’s introduction of the

picture of the interior compartment of Gay’s pickup, taken the day after the homicide, that had a

knife in the interior compartment. ECF No. 14-20, p. 303. Fraiser indicated he “[v]aguely”

recalled this occurring. Id. Fraiser was reminded that in his closing argument he said: “There

was a knife in the passenger compartment. I don’t know whether Connie Snow grabbed for it or

not.” Id. Fraiser stated: “If I’m not mistaken, there was some statement attributed to Randy,

something about a knife or some action Ms. Snow took. And, again, I could be totally wrong

about that.” Id.

Fraiser was next asked about whether Crawford was introducing the notion of imperfect

self-defense or the idea Gay had recklessly formed the belief that he may have been in danger.

Fraiser responded:

Answer: Well, obviously I know what the legal requirements are to present a self-

defense. But without a – without Randy testifying, I don’t see how we would’ve

been able to submit either a self-defense instruction and/or an imperfect self-

defense instruction because you have to have evidence that the individual acted in

the way that they did because they reasonably believed it was necessary in a very

succinct definition.

* * *

Question: Self-defense is not available as a justification when the mental state is

recklessness. Right.

Answer: Right. Reckless or negligent; that’s correct.

Question: Yeah. And so what I’m actually getting at is offering a manslaughter

instruction based on recklessly forming the belief that he was in danger.

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Answer: I don’t think – and when we did the instructions, we discussed lesser.

And if I’m not mistaken, we were allowed to put in – obviously you get capital. If

you got a premeditated case you automatically – or you should automatically get

murder one, and we submitted murder two. But I don’t know how in the world we

would’ve been able to justify submitting a manslaughter instruction.

Question: Yeah. And had you known that there was a prior diagnosis of

posttraumatic stress disorder, and had you furthered it up with your own expert on

PTSD, you’re aware that one of the by-products of PTSD is exaggerated startle

response –

Answer: Okay.

Question: --another’s hypervigilant, in other words, being hair triggered.

Answer: I understand.

Question: Do you think that could’ve helped support and build a potential

manslaughter instruction?

Answer: Not without Randy’s testimony, no.

Question: Why would – why would Randy’s testimony be necessary?

Answer: Well, because you can have an expert say that he suffered from PTSD

and one of the side – by-products is a hair trigger. Well, how’s that expert gonna

say that Randy reacted as the result of a hair trigger on this occasion, without him

testifying that he heard a noise and just snapped? I mean, you’ve got an expert

that’s telling you he’s got this diagnosis, but where’s gonna be the evidence that he

acted in conformity with that diagnosis without Randy? ‘Cause we had nobody

else.

ECF No. 14-20, pp. 303-305.

The Arkansas Supreme Court noted the only evidence in the record was: (1) the fact that a

knife had been found in the passenger compartment of Gay’s pickup; (2) a picture of the knife was

introduced; and (3) Gay’s medical treatment report that contained a statement by Gay that “a

woman tried to stab him.” Gay III, 2022 Ark. 23, * 18. The Supreme Court concluded that,

while counsel had a duty to reasonably investigate or reasonably decide an investigation was not

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necessary, counsel’s decision to “not investigate what he believed to be a losing defense theory

was a tactical decision and not a basis for Rule 37 relief.” Id, *19.

The court concluded:

Here, other than Gay’s own self-serving statement, there is no evidence that Gay

acted recklessly or in self-defense when he shot Snow. At trial, there was no

evidence presented that Snow had a weapon or acted aggressively toward Gay.

The two witnesses testified that Gay exited the truck and ordered Snow out of the

truck; Snow did not comply, and Gay went to the back of his truck and retrieved a

shotgun and again ordered Snow out of the truck. As Snow was attempting to exit

the truck, Gay shot Snow in the right side of her face. Further, during the Rule 37

hearing, Fraiser testified that there was no indication from any witness during the

trial that a knife was presented in a threatening manner to Gay when he shot Snow.

As the justification of self-defense was not available to Gay, his counsel necessarily

did not render ineffective assistance of counsel in failing to raise the defense.

Id.

c. Discussion

Review of counsel’s decisions under Strickland is highly deferential. The totality of the

circumstances must be considered in determining whether a habeas petitioner received ineffective

assistance of counsel. Strickland, 466 U.S. at 688-89. Counsel is required to “exercise

reasonable diligence to produce exculpatory evidence and strategy resulting from lack of diligence

in preparation and investigation is not protected by the presumption in favor of counsel.” Kenley

v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991). In this case, the Court agrees with the State

that counsel acted reasonably in not requesting a self-defense or imperfect self-defense instruction.

The sole evidence to support Gay came from a single statement he made that was recorded in a

prisoner medical treatment form. The fact that there was a knife in the car establishes nothing

unless it can be proven Snow wielded the weapon in some manner. Gay elected to exercise his

constitutional right not to testify. He cannot be faulted for this. However, this left his defense

team with no basis on which to request a self-defense instruction. Counsel was not deficient in

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failing to request an instruction not supported by the evidence. Further, Gay has not shown he

was prejudiced by the conduct of his counsel. Upon careful review, the decision of the Arkansas

Supreme Court was neither contrary to nor an unreasonable application of clearly established

federal law.

D. Claim 4—Gay’s Fifth, Sixth, and Fourteenth Amendment rights to a fair and

impartial jury were violated by the trial court’s preclusion of case-specific

mitigation questions during voir dire

a. Arguments of the Parties

Gay argues that throughout voir dire defense counsel was precluded from questioning

jurors about mitigating circumstances specific to his case. ECF No. 2, pp. 114-15. Gay

maintains this resulted in the seating of mitigation-impaired jurors and left jurors generally unable

to grasp the concept of weighing factors that could mitigate against the death sentence. Id., p.

115. In support, Gay points to the questioning of jurors Misty McLernon, Sandra Barker, Carolyn

Wetthington, and Margaret Young. Id. Essentially, all counsel was able to ask the jurors

regarding the weighing of mitigating factors was for their affirmative response that they could

follow the law and the court’s instructions. Id. None of the potential jurors were asked if they

could consider any mitigating evidence relevant to Gay’s case. Id., p. 116. In Gay’s view, “the

duty to conduct an adequate voir dire to seek out those jurors who cannot give meaningful

consideration to all relevant mitigating evidence has been breached.” Id. Gay argues “[i]n order

to adequately test for mitigation-impaired jurors, voir dire must explore whether or not a juror will

be able to consider a life sentence, weighing those facts specific to the defendant which militate

against a death sentence.” Id., p. 117. In sum, Gay argues the voir dire in his case was

constitutionally inadequate to guarantee him a fair and impartial jury. Id.

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The State maintains the focus of the Court must be on the jurors that sat on the jury. ECF

No. 13, p. 148. As Gay’s claim of “an impartial jury is predicated upon venirepersons who did

not actually end up on the jury,” the State contends “this alone is grounds for denial.” Id.

Moreover, when the record is carefully reviewed, the State contends it does not support Gay’s

position. Id., p. 149. With respect to potential jurors Barker, Wetthington, and Young, while

each stated they would automatically impose the death penalty if Gay was convicted, the State

argues this does not in any way establish that the circuit court limited Gay’s questions on mitigation

evidence. Id., p. 150.

b. Review of the Record

McLernon was one of three jurors in a panel. ECF No. 14-5, p. 223. Fraiser explained

the state had to prove the existence of aggravating circumstances beyond a reasonable doubt and if

they did the jurors would be asked to “see if there’s any mitigating circumstances. And a mitigator

is anything that you can consider for reasons not to give the death penalty. Or reasons for life.”

Id., pp. 223-24. Each juror indicated they understood this concept. Id., p. 224. Fraiser then

explained the jurors were required to decide “do the aggravators outweigh the mitigators and justify

a sentence of death. And if they don’t then you impose a sentence of life without parole.” Id.

Each juror indicated they understood. Id.

When asked if she would have any difficulty following the procedure, McLernon

answered: “I don’t know.” ECF No. 14-5, p. 224. Fraiser then stated: “Also in Arkansas even if

a jury makes all of those findings, a juror is allowed to exercise mercy and vote for life without”

parole. Id., p. 225. McLernon answered that this made sense. Id.

The following colloquy occurred:

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Fraiser: All right. Taking the last statement, would you be able to look at any

circumstances that were presented to you to convince you that the death penalty’s

not appropriate?

McLernon: I’m still on the side of the death penalty, so I can’t really answer that

question.

Fraiser: And let me just tell you. We’re not allowed to give you examples and

say –

McClernon: Oh, I know. I know.

Fraiser: --if this is proven, would you do this.

McLernon: I understand.

Fraiser: You know, it’s not like a –

McLernon: I understand.

Fraiser: --slot machine, where you put it in, pull the handle and get an answer.

McLernon: I know.

Fraiser: So that’s why we’re talking in a vacuum.

ECF No. 14-5, pp. 231-232.

Under questioning by the State, Barker indicated she would have to be convinced to give

someone life without parole. ECF No. 14-5, p. 433-34. During Frasier’s questioning of the panel

of three that Barker was placed in, Fraiser explained mitigating circumstances were “[r]easons not

to impose the death penalty. Or reasons to spare his life.” Id., p. 454. Fraiser continued

explaining mitigators could be anything and there was no limit on the number of mitigators that

could be considered. Id. Fraiser added that jurors were entitled to come up with a mitigator on

their own. Id., p. 455. Fraiser then advised jurors they would come to the stage where they were

“required to take the aggravator or aggravators then look at the mitigators, and weigh ‘em.” Id.

Frasier continued “even if you’ve made the findings of yes, the mitigators, it’s outweighed, do

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each of you understand that you have the authority as juror to always exercise mercy and vote for

life without parole?” Id. Each of the three jurors being questioned indicated they understood

this. Id., p. 456.

Fraiser turned to asking Barker about her support of the death penalty. ECF No. 14-5, pp.

456-463. Barker indicated she strongly supported the death penalty and if a person intentionally

murdered someone, that person should get the death penalty. Id., pp. 456-57. If the state proved

Gay guilty of capital murder, she indicated she would start the sentencing phase with the idea that

someone would have to convince her why Gay should not be sentenced to death. Id., p. 458.

Wetthington and Young also similarly testified. See e.g., pp. 709-712 (Wetthington); pp. 466-

475 (Young).

In Gay III, the Arkansas Supreme Court addressed this argument first by noting it could

have been raised on direct appeal and second by noting the circuit court found “Gay failed to

prove prejudice or the likelihood that the outcome of the trial would have been different.” Gay

III, 2022 Ark. 23, *7. It noted it had held in Reams v. State, 560 S.W.3d 441, 452 (Ark. 2018)

that Rule 37 was a postconviction remedy and did not “provide a method for the review of mere

error in the conduct of the trial or to serve as a substitute for appeal.” Id. An exception exists

“for errors that are so fundamental as to render the judgment of conviction void and subject to

collateral attack.” Id. In Gay III, the Arkansas Supreme Court noted it was not persuaded by

Gay’s argument that “his denial of a request . . . to voir dire [jurors] on particular mitigating facts

is an issue involving fundamental error.” Id.

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c. Discussion

In connection with Claim 2-3, the Court discussed the importance of voir dire in capital

murder cases. The Court will not repeat that discussion. As the State points out, on this claim,

none of the jurors identified by Gay sat on the jury who convicted and sentenced him.

The right to an impartial jury is itself clearly established federal law made applicable to the

states by the Fourteenth Amendment. See e.g., Morgan, 504 U.S. 719 (1992); Turner v.

Louisiana, 379 U.S. 466 (1965). In Connors v. United States, 158 U.S. 408, 413 (1895) the

Supreme Court discussed the role of voir dire and stated:

[A] suitable inquiry is permissible in order to ascertain whether the juror has any

bias, opinion, or prejudice that would affect or control the fair determination by him

of the issues to be tried. That inquiry is conducted under the supervision of the

court, and a great deal must, of necessity, be left to its sound discretion.

Nearly a century later, in Mu’Min v. Virginia, 500 U.S. 415, 425-26 (1991), a case dealing

with pretrial publicity, the Court stated, “[t]o be constitutionally compelled . . . it is not enough

that such questions be helpful. Rather the trial court’s failure to ask these questions must render

defendant’s trial fundamentally unfair.” In Morgan, the Court underscored the critical

importance of voir dire in capital cases. The underlying requirement is one of fundamental

fairness.

Here, while the trial court did not in general allow questioning regarding specific mitigating

circumstances, defense counsel had significant latitude in defining mitigating circumstances and

ensuring the jurors would commit to considering the mitigating factors. To rule in Gay’s favor

would require the Court to go further than Morgan or any other Supreme Court case and hold

that in all capital murder cases the defense must be allowed to ask case-specific mitigating

factors. This Court declines to do so. The decision of the Arkansas Supreme Court that Gay

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was not denied a fair and impartial trial was not an unreasonable application of clearly established

federal law.

E. Claim 11—In violation of the Eighth Amendment, the trial court erred in

refusing to allow as a mitigating circumstance that Gay had a calming influence

on others while in custody

a. Arguments of the Parties

Defense counsel offered as a mitigating circumstance that “Randy Gay has had a calming

influence on others while in custody.” ECF No. 2, p. 129. The State objected that no evidence

had been introduced to support the mitigator. Id. Defense counsel maintained “the jury could

reasonably infer that Randy had a calming influence ‘just based on the absence of disciplinary

infraction in his correctional record.’” Id. The Court struck the proposed mitigator.

Gay maintains there was ample evidence from which the jury could find he was a well-

behaved and well-adjusted inmate. ECF No. 2, p. 130. Gay argues this evidence supports a

conclusion that he had a positive influence and calming effect on others in custody. Id.

The State maintains the fact that Gay had “no disciplinary infractions while he was

incarcerated does not provide any evidence that he had a ‘calming influence’ on others—it merely

means he had not violated any prisoner guideline or regulation.” ECF No. 13, p. 182. The State

argues a “prisoner could be utterly terrifying to those around him and not have any disciplinary

infractions.” Id. The State asks that due deference be given to the state court.

b. Review of the Record

Gay raised this point on direct appeal. The Arkansas Supreme Court stated:

Arkansas Code Annotated §5-4-602(4), “[m]itigation evidence must be relevant to

the issue of punishment.” We have observed that Ark. Code Ann. § 5-4-602 does

not totally open the door to any and all matters simply because they might

conceivably relate to mitigation. Relevant mitigating evidence is limited to

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evidence that concerns the character or history of the offender or the circumstances

of the offense.

Here, Gay did not introduce evidence that he had a calming influence on others but

sought to submit the mitigating evidence based on an inference from Gay’s lack of

disciplinary record. However, Gay did not submit evidence to support this

mitigating circumstance. Accordingly, we hold that the circuit court did not err in

its refusal to submit the mitigation instruction regarding Gay’s calming influence

on others.

Gay v. State, 506 S.W.3d 851, 862-63 (Ark. 2016) (Gay I) (internal quotation marks and citations

omitted).

c. Discussion

The defense cites the case of Skipper v. South Carolina, 476 U.S. 1 (1986), in support of

his argument. In Skipper, the Supreme Court held the trial court’s exclusion from the sentencing

hearing of testimony from two jailers and a regular visitor that the defendant had “made a good

adjustment” during the 7 ½ months he had spent in jail between his arrest and trial deprived the

defendant of his right to place before the sentencer relevant evidence in mitigation of punishment.

Id. at 3-4. In so ruling the Court noted its holding “requires that in capital cases ‘the

sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.’” Id. at 4 (quoting Eddings v. Oklahoma, 455

U.S. 104, 110 (1982) (citation omitted)). “Equally clear is the corollary rule that the sentencer

may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’”

Id. (quoting Eddings, 455 U.S. at 114). The Court held evidence that the defendant would in the

“future pose a danger to the community if he were not executed” could be treated as an aggravator

while “evidence that the defendant would not pose a danger if spared (but incarcerated) must be

considered potentially mitigating.” Id. at 5. In short, it held “a defendant’s disposition to make

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a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is

by its na

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