Fairchild v. Norris

Per Curiam. We deny appellant’s request for stay of execution. Appellant offers several legal arguments which essentially are based upon his being presumptively mentally retarded. The issue of whether appellant is mentally retarded has previously been rejected by United States District Judge G. Thomas Eisele in Fairchild v. Lockhard, 744 F.Supp. 1461 (1989). Judge Eisele decided appellant voluntarily, knowingly and intelligently waived his Miranda rights before confessing his involvement in the robbery, rape and murder of Ms. Mason. In making this ruling he determined appellant was not retarded. Judge Eisele made his rulings after appellant and the State of Arkansas presented a voluminous amount of evidence bearing on appellant’s mental history and evaluations offered through witnesses, including psychiatrists. His memorandum opinion setting out the underpinnings of his rulings covers seventy-eight pages. The Eighth Circuit reviewed Judge Eisele’s findings and affirmed them in a decision handed down on November 10, 1992. Fairchild v. Lockhard, 979 F.2d 636 (8th Cir. 1992), cert. denied 497 U.S. 1052 (1990). Accordingly, we hold appellant cannot reassert the issue of his mental retardation and is precluded from doing so under the doctrine of collateral estoppel. Ashe v. Swenson, Warden, 397 U.S. 436 (1970); National Farmer’s Union Standard Insurance v. Morgan, 966 F.2d 1250 (8th Cir. 1992); see generally Judgments, 50 C.J.S. § 754 (a), p. 267 (1947). Appellant seeks relief based upon Act 420 of 1993 which bans the execution of a person who is mentally retarded only when a jury unanimously determines that the person was mentally retarded at the time of the murder. Based upon our analysis above, such Act simply does not apply here because appellant is not mentally retarded.1 We note the same definition of mental retardation contained in Act 420 was the definition used by Judge Eisele in reaching his decision pertaining to appellant’s mental state. In addition, because appellant emphasizes to some extent in his contention that his I.Q. was in the low 60’s in 1983, we further note that Judge Eisele specifically rejected appellant’s contention in this respect, and opined the best tests, administered under optimal circumstances, would yield an I.Q. for appellant somewhere between 75 and 87. Motion for stay denied. Hays and Newbern, JJ., dissent. Footnotes [1] The fact that there has been a judicial determination relating to Barry Lee Fairchild’s allegation of mental retardation distinguishes this case from the Georgia case cited by petitioner-appellant, Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989).