Barry Lee Fairchild, Appellant, v. A.l. Lockhart, Director of the Arkansas Department Ofcorrection, Appellee, 857 F.2d 1204 (8th Cir. 1988)

Barry Lee Fairchild was convicted of the capital murder of Marjorie Mason and sentenced to death. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal, Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, 471 U.S. 1111, 105 S. Ct. 2346, 85 L. Ed. 2d 862 (1985), and, aside from giving Fairchild a choice between electrocution and lethal injection as the manner of execution, denied post-conviction relief. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). After Fairchild filed this petition for writ of habeas corpus in the District Court,¹  he decided to withdraw the petition and proceed to execution, because he considered death preferable to life in prison without parole, which he thought was the best result he could hope for on habeas. The District Court found Fairchild competent to waive collateral review, but after a court-appointed expert (who is Fairchild's current lawyer) had analyzed the case, Fairchild decided to pursue two grounds which could win him a new trial, as opposed to resentencing, if he prevailed. So Fairchild dropped all claims but the two before us; no one questions the validity of this waiver.

The issues before us are whether Fairchild's trial lawyers were constitutionally ineffective for not challenging the legality of the arrest warrant (for an unrelated charge) on which he was arrested, and whether Fairchild was coerced into confessing to the Mason murder. In a thoughtful and thorough opinion, 675 F. Supp. 469 (E.D. Ark. 1987), the District Court rejected these claims. We affirm.

In December, 1982, an arrest warrant for Fairchild was issued by the Clerk of the Municipal Court of Little Rock, Arkansas, in connection with an alleged attempted capital murder of a Little Rock police officer, Joe Oberle. Fairchild had not been arrested by February 26, 1983, the date Mason was murdered. When Fairchild became a suspect in that murder, he fled Little Rock and boarded a bus for California. He escaped from the bus when police stopped it in Russellville, Arkansas, and was arrested there three days later after an intensive manhunt. A few hours later, after having been brought back to Little Rock, Fairchild twice confessed to the murder on video tape and took the investigating officers on a "tour" of places where different parts of the crime had occurred.

Fairchild's trial lawyers moved to suppress this evidence on the ground that there was no probable cause to arrest for the Mason murder. The prosecutor defeated the motion by arguing that the arrest was on the Oberle warrant, not the Mason murder. Fairchild's lawyers did not question the adequacy of the warrant. In his habeas petition, Fairchild argues that this failure amounted to ineffective representation. As explained in Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986), to prevail on this claim Fairchild must show not only that his lawyers' representation fell below an objective standard of reasonableness, but also that "his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence...." Id. at 375, 106 S. Ct. at 2583. The District Court rejected this claim. It ruled that Fairchild's arrest did not violate the Fourth Amendment, so the evidence would not have been suppressed, and Fairchild therefore could not establish actual prejudice on his claim of ineffective assistance.

To explain why we affirm this determination, we need only briefly recount the District Court's reasoning. First, the Court held the procedures underlying the issuance of the Oberle warrant constitutionally defective, see 675 F. Supp. at 477-79, and the evidence obtained in reliance on that warrant excludable under the rule of United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), see 675 F. Supp. at 479-87. Second, it ruled that there was no probable cause to make a warrantless arrest of Fairchild for the Oberle attempted murder. Id. at 487-88. But it did find that, at the time Fairchild was arrested in Russellville, there was probable cause to make a warrantless arrest for the Mason murder. Id. at 488-89.²  Thus, the Court concluded that the arrest was valid under the Fourth Amendment and provided no basis on which to suppress evidence obtained in the subsequent interrogations.

Our review of the District Court's factual findings is limited to a determination of whether they are clearly erroneous. Campbell v. Minnesota, 553 F.2d 40 (8th Cir. 1977). Under the standards that govern this inquiry, see Anderson v. City of Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985), we must affirm. To the extent that Fairchild's attack on the findings implies that the police were lying about the tips they received, and asserts that there are innocuous, non-criminal explanations for other, apparently damning facts, such as Fairchild's flight from Little Rock at the time he became a suspect, the attack fails because the District Court rejected that version of the events, and its "account of the evidence is plausible in light of the record viewed in its entirety." Anderson, 470 U.S. at 574, 105 S. Ct. at 1511. To the extent that Fairchild's attack isolates the various bits of information the police had, and views them separately, it fails because the relevant legal standard is whether all the evidence, in the aggregate, amounts to probable cause.

Nor do we doubt the correctness of the Court's legal conclusion based on these facts, that the police had probable cause to arrest Fairchild for the Mason murder. In addition to the other information set forth in note 2, supra, the police had an informant's tip that Fairchild had committed the murder, and details of the tip were corroborated by other information within the knowledge of the police. See Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959).

Fairchild also urges that his conviction be reversed and a new trial ordered because the two videotaped confessions and the testimony regarding the "tour" of the different scenes of the crime (essentially, another confession), which the prosecution introduced at trial, were coerced. At the suppression hearing in the state court, Fairchild claimed that he was beaten and threatened by the police after his return to Little Rock, and forced to tell a story fabricated by the police before the video camera. The state court rejected Fairchild's testimony and found the confessions voluntary. Under Miller v. Fenton, 474 U.S. 104, 112, 106 S. Ct. 445, 451, 88 L. Ed. 2d 405 (1985), federal habeas courts must presume that the findings of historical fact underlying that ruling are correct.

At the hearing in the District Court, Fairchild reiterated his account of the brutality and threats in Little Rock, and also, for the first time, testified that he had been slapped and yelled at by a police officer and intimidated by police dogs in Russellville immediately after his arrest. A former Russellville police officer corroborated this testimony, but all of the other witnesses, also police officers, and Fairchild's earlier statecourt testimony contradicted it. The District Court discredited the testimony of Fairchild and the former officer. See 675 F. Supp. at 473. It found that the only force used against Fairchild before he confessed was that which "was necessary and incidental to the arrest. No force or threats or physical coercion were used against Mr. Fairchild on the trip back from Russellville to Little Rock, or at the Little Rock facility." Ibid. The Court found further that Fairchild was not interrogated about the Mason murder until he arrived at Little Rock, ibid.; that he was not interrogated until after he was given his Miranda warnings, id. at 473-74;³  and that no police officer suggested what Fairchild should say on camera. Id. at 474. It concluded that Fairchild's confessions were voluntary. Id. at 491.

We affirm. Resolution of the factual dispute underlying this issue depends on an assessment of the credibility of the various witnesses involved.⁴  This task is almost entirely within the province of the District Court, and its findings on credibility "can virtually never be clear error." Anderson v. City of Bessemer City, 470 U.S. at 575, 105 S. Ct. at 1512. On the record before us, we have no basis for rejecting the Court's credibility determinations. And on the facts as they come to us, we agree with the conclusion that Fairchild was not coerced into confessing.

We affirm the judgment. Our mandate will be stayed until the time for seeking a writ of certiorari in the Supreme Court has expired. If Fairchild petitions for certiorari, our mandate will be stayed until we receive notice that certiorari has been denied, or until we receive the mandate of the Supreme Court. We appreciate the diligent service of Fairchild's court-appointed counsel.

It is so ordered.