FAYETTEVILLE — Attorneys for condemned double-murderer Gregory Decay are taking one more crack at getting his convictions overturned by the Arkansas Supreme Court, arguing jury selection in the death penalty case was flawed.
Decay, 29, gunned down Kevin Barkley Jones and Kendall Rachell Rice in their Fayetteville apartment April 3, 2007. Both were 24. Decay was convicted and given two death sentences in April 2008. Decay must exhaust all state court remedies before beginning the federal appeals process.
Death penalty convictions in Arkansas automatically are appealed to the Arkansas Supreme Court for mandatory review. The court upheld the capital convictions in November 2009. A subsequent appeal that claimed ineffective counsel was rejected.
The high court has agreed to at least listen to the latest argument. Decay’s attorneys at the Federal Public Defender’s Office in Little Rock this week filed motions that ask the court to recall its mandate in the case, vacate the convictions and remand the case to settle the record or, if the record in the case cannot be reconstructed, a new trial.
They contend the record was not sufficient for the court to fully review the case. They argue the high court did not receive a full record of the proceedings on appeal, specifically information about juror questionnaires and the striking of some potential jurors before trial.
The motion, by Assistant Federal Public Defender Scott Braden, contends critical parts of the jury selection were done off the record, outside the courtroom and out of Decay’s presence.
“Thirty jurors were excluded before trial began with no record of these exclusions or strikes. At least one of the jurors stricken by the prosecution prior to trial was African American,” according to the motion, “Mr. Decay, a black man charged with killing two white victims, was tried, convicted and sentenced to death by an all-white jury.”
The other African American in the jury pool was never called during jury selection process.
The motion says extensive questionnaires sent to potential jurors before trial were destroyed, preventing them from being made part of the appeal record, and there was no record from the lower court about how they were used in the jury selection process.
“What this court did not know, because the trial court abused its discretion in not making the necessary record, was how this ‘lengthy questionnaire’ was created,” according to the motion. “On April 17, 2008, thirty jurors were peremptorily stricken before trial based solely on this questionnaire and at least one African American juror was excluded in this process. Conducting or allowing this off-the-record proceeding was an abuse of the trial court’s discretion in jury selection.”
The abuse of discretion directly prevented the Supreme Court’s mandatory review, causing a breakdown in the appellate procedure and deprived Decay of his fundamental constitutional rights, according to the motion.
Lawyers from the Arkansas Attorney General’s Office have filed a response saying there are no grounds to recall the mandate because Decay did not ask for the jury selection process to be made a part of the appeal record and his trial attorneys agreed to the jury selection format.
“There is no affidavit indicating that these materials were not available in defense counsel’s files for inclusion on direct review via a motion to settle the record or to supplement the record,” according to the response. “Accordingly, the appellant does not demonstrate that the record was incomplete or that the trial court improperly destroyed the juror’s questionnaires.”
The response, by Assistant Attorney General Karen Wallace, also contends Decay has not demonstrated how the court’s review of the material would have changed the result of his appeal.
Decay walked into the apartment on Sycamore Street and shot Jones in the face with a .40-caliber pistol from less than two feet away. Then he turned and shot Rice in the face. During an interview with police, Decay said he killed Jones and Rice because he believed they had broken into his apartment and stolen marijuana and a gun.
Jesse Westeen, 28, was convicted of being an accomplice. He pleaded guilty to driving Decay to the apartment. He was sentenced to 50 years.
Decay was the first person to be given a death sentence in Washington County since 1981. A convict from Washington County hasn’t been executed since 1920. Several others were sentenced to death in the interim, but their sentences were either commuted to life in prison when the U.S. Supreme Court declared the death penalty unconstitutional in 1972 or their sentences were overturned on appeal. The death penalty was reinstated in 1976.
Benton County last had a murderer executed in August 1996 when Frankie Parker was put to death for killing his former in-laws and holding his ex-wife hostage in 1984 in Rogers.
Death row
Benton County has three men on Arkansas’ death row. Zachary Holly, 30, was sentenced to death earlier this week for the murder, kidnapping and rape of 6-year-old Jersey Bridgeman. Don Davis was sentenced to die in 1992 for the execution-style killing of Jane Daniel of Rogers. Brandon Lacy was sentenced to die in 2009 for the murder of Randy Walker. Circuit Judge Robin Green ruled that Lacy is entitled to another sentencing hearing, which is on appeal. Washington County has two men on death row: Decay and Zachariah Marcyniuk. Both men were sentenced to death in 2008. Marcyniuk, 36, stabbed University of Arkansas student Katie Wood to death after breaking into her apartment and laying in wait for her.
Source: Staff report
Ron Wood can be reached by email at rwood@nwadg.com or on Twitter @NWARDW.