# Fretwell v. State

> Supreme Court of Arkansas · May 19, 1986 · 289 Ark. 91

URL: https://www.frixlaw.com/law-library/cases/9684095

## Case

- **Full name:** Bobby Ray FRETWELL v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** May 19, 1986
- **Citations:** 289 Ark. 91; 708 S.W.2d 630; 1986 Ark. LEXIS 1918
- **Precedential status:** Published
- **Opinion:** Concurrence by Hickman
- **Judges:** Dudley, Purtle, Hickman
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684095

## Opinion text

Darrell Hickman, Justice, concurring. I concur to update the history of our review of capital cases contained in my concurring opinion in Ruiz v. State, 280 Ark. 190, 193 , 655 S.W.2d 441 (1983) (Hickman, J., concurring). Since Ruiz we have reviewed the death penalty in six cases. Including Fretwell’s sentence, affirmed today, we have upheld the death penalty in four cases. Rector v. State, 280 Ark. 385 , 659 S.W.2d 168 (1983), cert. denied, _ U.S. _, 104 S.Ct. 2370 (1984); Fairchild v. State, 284 Ark. 289 , 681 S.W.2d 380 (1984), cert. denied, — U.S. —, 105 S.Ct. 2346 (1985), petition for postconviction relief granted in part; stay of execution denied, 286 Ark. 191 , 690 S.W.2d 355 (1985); Pruett v. State, 282 Ark. 304 , 669 S.W.2d 186 (1984), cert. denied, 469 U.S. 963 , 105 S.Ct. 362 (1984), petition for postconviction relief denied, 287 Ark. 124 , 697 S.W.2d 972 (1985).
In Miller v. State, 280 Ark. 551 , 660 S.W.2d 163 (1983), the death sentence was reduced to life imprisonment without parole.
In another case the decision was reversed and remanded for a new trial. Hendrickson v. State, 285 Ark. 462 , 688 S.W.2d 295 (1985). It has not yet been presented on a second appeal. Neither have two cases we previously reversed and remanded, before Ruiz, come before us again. Penelton v. State, 277 Ark. 225 , 640 S.W.2d 795 (1982); Rhodes v. State, 276 Ark. 203 , 643 S.W.2d 107 (1982). We reversed the death sentence in Harmon v. State, 277 Ark. 265 , 641 S.W.2d 21 (1982). On retrial Harmon was found guilty of first degree murder and received a life sentence, which we affirmed at 286 Ark. 184 , 690 S.W.2d 125 (1985).
During this period of time from July 18,1983, until May 12, 1986, we have reviewed 15 cases in which capital murder was the finding and the death penalty was sought but riot imposed. To date we have affirmed the death penalty for 24 persons. Fifteen are white, eight are black and one is hispanic. All are males. In none of the four recent death cases which we have affirmed can there be any doubt that the crime warranted the most severe sentence allowed by law.
In the nine years we have reviewed these cases, no decision in which we have'approved the death penalty has been reversed or modified by the United States Supreme Court. At the same time no decision in which we have affirmed the death penalty has been affirmed by the Court of Appeals for the Eighth Circuit. Recently, in Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), the Eighth Circuit reduced Carl Albert Collins’ death sentence to life without parole because the state used one of the aggravating circumstances (murder committed for pecuniary gain), presented in the penalty phase, as one of the elements of the crime itself (that the murder was committed in the course of a robbery). In Ruiz v. Lockhart, 754 F.2d 254 (8th Cir. 1985), the Eighth Circuit reversed the district court’s denial of Paul Ruiz’s and Earl Van Denton’s petition for habeas corpus relief and remanded the case with orders that the writ be granted or the petitioners be retried. The basis for the reversal was the holding that death qualification of a jury creates a conviction prone jury. That decision was recently reversed in Lockhart v. McCree,_U.S. _, 106 S.Ct. 1758 (1986), where the United States Supreme Court held that death qualified juries are constitutional.
Several conclusions could be drawn from all these statistics. The most obvious is that the review process for death cases is far too long and involves too many courts. Are we playing legal games with capital punishment? If the review process, which is directed and controlled by the federal courts, continues to require about ten years and at least seven or eight separate reviews to approach finality, then the process is not just inefficient, it is a failure. A legal system, such as ours which fails to honestly, directly, and efficiently address legal questions of this magnitude will lose the most important foundation stone of that system — the respect of the people.
ADDENDUM
In the following cases this court has affirmed the appellants’ death sentences:
Rector v. State, 280 Ark. 385 , 659 S.W.2d 168 (1983) cert. denied, 466 U.S. 988 , 104 S.Ct. 2370 (1984). (Rector shot and killed a policeman.)
Pruett v. State, 282 Ark. 304 , 669 S.W.2d 186 (1984); cert. denied, 469 U.S. 963 , 105 S.Ct. 362 (1984); petition for postconviction relief denied, 287 Ark. 124 , 697 S.W.2d 972 (1985). (Pruett has been called the “mad dog killer”. He kidnapped and murdered a convenience store clerk.)
Barry Lee Fairchild v. State, 284 Ark. 289 , 681 S.W.2d 380 (1984); cert. denied, _ U.S. _, 105 S.Ct. 2346 (1985); postconviction relief granted in part, stay of execution denied, 286 Ark. 191 , 690 S.W.2d 355 (1985). (Convicted of murder, rape, robbery and kidnapping. He was sentenced to die by electrocution. This court granted his petition to allow him the choice between dying by electrocution or by lethal injection.)
The court reduced the sentence from death to life without parole in Miller v. State, 280 Ark. 551 , 660 S.W.2d 163 (1983). (Insufficient evidence of crimes to go to the jury as aggravating circumstances in the penalty phase of Miller’s trial.)
In the following case where the appellant received a death sentence, the court reversed and remanded and on retrial the appellant was convicted of first degree murder and received a life sentence. Harmon v. State, rev’d. 277 Ark. 265 , 641 S.W.2d 21 (1982); aff'd, 286 Ark. 184 , 690 S.W.2d 125 (1985).
The court has reversed the following death penalty cases but they have not yet come up on appeal: Penelton v. State, 277 Ark. 225 , 640 S.W.2d 795 (1982); Rhodes v. State, 276 Ark. 203 , 643 S.W.2d 107 (1982); Hendrickson v. State, 285 Ark. 462 , 688 S.W.2d 295 (1985).
In the following cases capital murder was charged and found, the death penalty was sought but not imposed:
Breault v. State, 280 Ark. 372 , 659 S.W.2d 176 (1983); Hogan v. State, 281 Ark. 250 , 663 S.W.2d 726 (1984); Love v. State, rev’d and rem’d, 281 Ark. 379 , 664 S.W.2d 457 (1984); Cessor v. State, 282 Ark. 330 , 668 S.W.2d 525 (1984); Linell v. State, 283 Ark. 162 , 671 S.W.2d 741 (1984); cert. denied,_U.S.__, 105 S.Ct. 1778 (1985); Owens v. State, 283 Ark. 327 , 675 S.W.2d 834 (1984); Metcalf v. State, rev’d and rent’d, 284 Ark. 223 , 681 S.W.2d 344 (1984); Hall v. State, 286 Ark. 52 , 689 S.W.2d 524 (1985); Williams v. State, 286 Ark. 492 , 696 S.W.2d 307 (1985); Sullivan v. State, 287 Ark. 6 , 696 S.W.2d 709 (1985); Snell v. State, 287 Ark. 264 , 698 S.W.2d 313 (1985); Novak v. State, 287 Ark. 271 , 698 S.W.2d 499 (1985), petition for postconviction relief denied, unpublished opinion issued April 28,1986. Shelton v. State, rev’d and rem’d, 287 Ark. 322 , 699 S.W.2d 728 (1985); Zones v. State, 287 Ark. 483 , 702 S.W.2d 1 (1985); Holland v. State, 288 Ark. 435 , 706 S.W.2d 375 (1986).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684095. Public record. Not legal advice.