dissenting. Counsel for Barry Lee Fairchild have asked that we stay his execution long enough to consider whether the execution would constitute cruel or unusual punishment as proscribed by Ark. Const. art. 2, § 9. Their theory is that Act 420 of 1993, by prohibiting executions of retarded persons, has brought into question whether execution of Mr. Fairchild would be prohibited by our Constitution. They also cite a survey showing that a majority of Arkansas citizens oppose execution of retarded persons. They ask that the execution, which is set for September 22, 1993, be stayed long enough to allow them to address on appeal the constitutional issue which was presented earlier to the Jefferson County Circuit Court which rejected their contention.
My colleagues choose to deny the stay on the ground that there has been a decision that Mr. Fairchild is not retarded, and thus the policy of Act 420 does not apply to him. They are applying the doctrine of collateral estoppel. I do not believe the doctrine applies in this case, and I conclude there has been no decision on that matter binding in the circumstances of the appeal counsel wish us to consider.
In Fleming v. Zant, 386 S.W.2d 339 (Ga. 1989), the Georgia Supreme Court was faced with a situation much like the one before us now. The Georgia legislature had passed an act like Act 420 subsequent to the trial and sentencing of Fleming. The Georgia Supreme Court, applying the Georgia Constitution, concluded that the execution of a retarded person would constitute cruel and unusual punishment, and the case was sent back to a trial court for a determination whether Fleming was retarded. The difference between the Fleming case and the one now before us is that the United States District Court for the Eastern District of Arkansas concluded that Fairchild was not retarded. Fairchild v. Lockhart, 744 F.Supp. 1429 (E.D. Ark. 1989). The Georgia Supreme Court had no such ruling before it in the Fleming case. If the decision of the Federal Court that Fairchild is not retarded is conclusive and binding on us, then the majority is correct in refusing to grant the stay, but that depends on application of the doctrine of collateral estoppel. Were it not for the application of that doctrine and the majority’s conclusion that we are bound by the Federal Court decision, I feel sure the stay would be granted.
Counsel for Mr. Norris correctly assert that the doctrine of collateral estoppel had four elements, each of which must be satisfied. The elements are:
1. The issue must be the same as that involved in a prior litigation.
2. The issue must have been actually litigated.
3. The issue must have been determined by a valid and final judgment.
4. The determination must have been essential to the judgment.
See East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986); Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983).
When the Federal Court considered the question whether Mr. Fairchild was retarded it was for the purpose of determining whether he had the capacity to waive his right not to incriminate himself after having been informed of that right. In other words, the question before the Court was whether it was proper for the Court in Fairchild’s trial to have admitted evidence of his confession. On the very face of it, that is a different issue from the one we are concerned with now, i.e., whether Fairchild should be executed. If, however, we define “issue” more narrowly to be whether he is retarded, then perhaps it can be said the issue has been decided; but that is not enough. We must also find that the decision that Mr. Fairchild is not retarded was, in the words of requirement 4., “essential to the judgment.” See Farris v. State, 303 Ark. 541, 798 S.W.2d 103 (1990), and Hyde v. Quinn, 298 Ark. 569, 769 S.W.2d 24 (1989), in which we mention the requirement that the decision of the issue be essential to the judgment for collateral estoppel to apply.
If a retarded person can waive the right not to incriminate himself or herself, whether he or she is retarded may be relevant to a decision whether the confession is admissible, but is it “essential?” I think not. The Federal Court perceived the difference by referring to expert testimony concluding that mildly retarded persons may indeed have the capacity to waive the rights described in the Miranda case.
If the Federal Court decision that Fairchild was retarded had been an alternative ground for deciding that Fairchild was unable to waive his Miranda rights, we would have to conclude it was binding. See 1 B James W. Moore et al., Moore’s Federal Practice ¶ 0.443 [5] (Supp. 1988). It was, however, simply a conclusion separate from the waiver issue and not a basis for the decision. That becomes clear upon realization that a retarded person may waive the right not to engage in self incrimination. See Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992); Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987) (defendant with an I.Q. of 62 found capable of waiving Miranda rights). See also Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).
The materials presented to us indicate that, despite the Federal Court’s conclusion that Fairchild is not retarded, he could present a very convincing case to the contrary. If that is so, and if as I conclude we are not bound by the Federal Court’s opinion that Fairchild is not retarded, then I believe a serious issue would be presented to us as was presented to the Georgia Supreme Court in the Fleming case. Under these circumstances we should stay the execution to consider the appeal.
I respectfully dissent.
Hays, J., joins this dissent.