Randy William Gay v. State of Arkansas, 2022 Ark. 23

Background

Randy William Gay was convicted by a Garland County jury of capital murder for the 2011 shooting death of Connie Snow and sentenced to death; this Court affirmed on direct appeal in Gay v. State, 2016 Ark. 433.
At penalty phase the State relied on three aggravators: two prior second-degree murders (of Jim Kelly and Gay’s father Glen) and a 2007 terroristic-threatening conviction; the defense presented ~70 mitigating circumstances (childhood abuse, alcohol dependence, institutional adjustment).
Gay filed a Rule 37 postconviction petition alleging, inter alia, ineffective assistance of trial counsel (voir dire, mitigation investigation, tactical choices), instructional and verdict-form defects, and improper prosecutorial argument; the circuit court denied relief after an evidentiary hearing.
This Court previously reversed and remanded for supplemental findings (Gay II, 2021 Ark. 3); the circuit court issued a supplemental order again denying relief, and Gay timely appealed.
The Rule 37 hearing developed expert testimony (PTSD, alcoholism, childhood sexual abuse) asserting more and different mitigation evidence was available, and testimony from trial counsel explaining strategic choices (jury selection, introduction of Adams/ADC files).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fair and impartial jury / refusal to strike venirepersons	Gay: two prospective jurors would automatically impose death or were unfit to consider case-specific mitigators; counsel was ineffective in voir dire.	State: jurors at issue were peremptorily struck; voir dire was adequate and strategic; claim could have been raised on direct appeal.	Denied — Court finds issue was preserved/considered on direct appeal; challenged venirepersons were peremptorily struck and counsel’s voir dire was a reasonable strategy.
Ineffective assistance — jury selection strategy	Gay: counsel failed to ask about ability to consider particular mitigators (PTSD, sexual abuse, intoxication).	State: counsel used strategy to seat borderline jurors and asked general mitigation questions; such tactical choices are protected.	Denied — tactical voir dire decisions reasonable; no deficient performance shown.
Ineffective assistance — mitigation investigation/presentation	Gay: counsel failed to investigate/present significant mitigation (PTSD, chronic alcoholism, childhood sexual abuse, expert testimony).	State: much mitigation was investigated and presented; Gay refused to cooperate/testify; counsel’s mitigation theory was strategic.	Denied — court credited counsel’s investigation and strategy; additional expert evidence would not likely have changed outcome.
Ineffective assistance — evidentiary choices (ADC "pen pack", victim-impact, closing objections)	Gay: introducing ADC file and not objecting to victim-impact/prosecutor language was prejudicial and deficient.	State: use of pen pack, restraint on objecting to victim statements/closing were tactical; pen pack supported institutional-mitigation theory.	Denied — counsel’s choices were strategic and reasonable; objections would not likely have altered sentence.
Challenges to aggravators / failure to challenge prior murders	Gay: counsel failed to investigate/contextualize Kelly and Glen murders to reduce aggravator weight or show justification.	State: trial counsel obtained files, limited additional inquiry to avoid opening damaging evidence; key witnesses’ statements undermined self‑defense theory.	Denied — counsel adequately investigated; further inquiry would have risked or lacked support; no prejudice shown.
Instruction/verdict-form defects (Form 3, ambiguous marks, narrowing of aggravator)	Gay: Form 3/pre-printed verdict forms and §5-4-604 wording prevented jury mercy and were vague; ambiguous markings invalidate sentence.	State: these issues were appellate, not Rule 37, and this Court’s precedent (Kemp) rejects the Form 3 argument.	Denied — collateral review improper for nonstructural, direct-appealable issues; precedent upheld Form 3 and no structural error shown.
Prosecutorial argument / nonstatutory aggravator (lack of remorse)	Gay: prosecutor used letter and argument to suggest lack of remorse as a nonstatutory aggravator.	State: argument was within bounds; the claim could have been raised on direct appeal and was not a structural error.	Denied — claim cognizable on direct appeal only; not a Rule 37 basis for relief.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective-assistance standard)
Morgan v. Illinois, 504 U.S. 719 (juror who will automatically impose death must be excused for cause)
Payne v. Tennessee, 501 U.S. 808 (victim-impact testimony admissible but prejudicial remarks may violate due process)
Wiggins v. Smith, 539 U.S. 510 (counsel’s failure to investigate mitigating evidence can be ineffective assistance)
Sullivan v. Louisiana, 508 U.S. 274 (defective reasonable-doubt instruction is structural error)
Kemp v. State, 324 Ark. 178 (Arkansas precedent upholding model Form 3 permits jury mercy)
Willis v. State, 334 Ark. 412 (loss of peremptory challenge not reviewable on appeal)
Reams v. State, 2018 Ark. 324 (Rule 37 collateral-review limits; exception for fundamental/structural errors)