State v. Simmons
| Decision Date | 30 September 1997 |
| Docket Number | No. 77368,77368 |
| Parties | STATE of Missouri, Respondent, v. Willie SIMMONS, Appellant. |
| Court | Missouri Supreme Court |
Janet M. Thompson, Asst. Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for Respondent.
A jury convicted Willie Simmons of the first degree murder of Cheri Johnson and sentenced him to death. The postconviction court overruled Simmons' Rule 29.15 motion. This Court has jurisdiction. Mo. Const. art. V, sec. 3. We affirm the judgments.
Simmons was charged with the murder of Cheri Johnson in the first count of a two-count indictment. The second count charged Simmons with the murder of Leonora McClendon. Simmons was originally tried for both counts in the same proceeding and was found guilty on both counts. This Court overturned those convictions on the basis that the two murder charges should not have been tried together. State v. Simmons, 815 S.W.2d 426 (Mo. banc 1991). On remand, Simmons was first tried for the murder of Cheri Johnson and once again found guilty. He was then tried and convicted for the murder of Leonora McClendon.
The evidence at trial, which we review in the light most favorable to the verdict, State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following:
On the evening of November 30, 1987, neighbors heard screams and thumping noises emanating from Cheri Johnson's Plaza Square apartment. A building security guard investigated the noises. He knocked on Johnson's apartment door several times before a male voice said that everything was okay and that the woman was sleeping. The security guard asked to be let inside the apartment, but there was no further response. Eventually, the security guard departed.
The next day, Johnson did not show up for work. Upon investigation, the police found her dead, beaten in the head and strangled with a distinctively colored necktie. During an examination of the apartment, the police discovered a carnation wrapped in purple paper. They traced this carnation to a flower shop in St. Louis Centre, where the employees informed them that the purple paper was unique to their shop, and that the previous day the only person who had bought a carnation was a man wearing a tie matching the one around Johnson's neck. One of the employees thought that the man worked at Walgreen's. The police inquired at Walgreen's and found that although he no longer worked there, the man's name was Willie Simmons.
The police arranged for Simmons to come in for an interview in early December, but he did not appear. They then began searching for him. On January 3, 1988, he came to them, showing up at the homicide office. He gave increasingly incriminating responses to police questioning: at first asserting that he had met Johnson but had never been to her apartment; next, saying that they had had a relationship, that she had given him a key to her apartment, and that he kept some items of clothing there, including the distinctive tie; then, saying that on November 30, he had gone to Johnson's apartment to take her the carnation and other items, but had left these items at her front door and had not gone in the apartment; finally, saying that he had gone inside the apartment that day. He could not, however, produce for police the alleged key to Johnson's apartment.
The police then arrested Simmons for Johnson's murder. They seized his billfold and recovered, among other items, three pawn tickets and claim checks for photographs being developed. Two of the pawn tickets were for jewelry belonging to Johnson and the other was for a watch owned by McClendon. Simmons first explained the presence of these pawn tickets by saying that Johnson had given him the jewelry to pawn to raise money to fix his automobile, then changed his story and said that he had stolen the jewelry from Johnson's apartment after finding her dead on the floor. The autopsy of Johnson revealed scratch marks on her fingers consistent with forcible removal of jewelry. The photographs that police recovered from the claim checks included numerous images of Simmons, including one of him wearing the distinctive tie found around Johnson's neck, and one of him at the flower shop where he had bought the carnation.
Simmons asserts that the trial court erred in overruling his motion to remand for a hearing on the State's motion to disqualify the judge originally assigned to Simmons' cases. The State's motion to disqualify was sustained on November 23, 1993, and the cases were transferred to a different judge. Simmons' motion for remand, filed January 6, 1994, alleged that the disqualification of Judge Peek was improper in that the State had already received an automatic change of judge under Rule 32.07 on January 6, 1992.
In ruling on the motion to remand for a hearing, Judge Dierker construed the State's April 23 motion as a motion to disqualify for cause. There is nothing in the record to indicate that this interpretation was incorrect. Under Rule 32.10, the State could properly move for a disqualification for cause, even after previously receiving an automatic change of judge. Simmons does not contend that Judge Peek improperly assessed the impropriety of his continued involvement in the cases, and having apparently determined that he was biased, Judge Peek properly removed himself from Simmons' cases. Under these facts, Judge Dierker had no reason to remand for a hearing on the State's motion for disqualification of Judge Peek; thus, the trial court committed no error in overruling Simmons' motion to remand for a hearing. Furthermore, because the disqualification was proper, Simmons' related claims of 1) ineffective assistance of counsel for failing to petition for a writ of prohibition to prevent Judge Dierker from hearing the cases, and 2) prosecutorial misconduct for filing a second motion for change of judge, are both necessarily invalid.
Simmons next argues that the trial court erred in denying his pretrial motion to suppress evidence obtained by the police through two of the pawn tickets and the CPI Photo receipts found in his wallet and in overruling his objection to the admission of this evidence at trial. We review the denial of a motion to suppress to determine whether sufficient evidence exists to support the trial court's decision. State v. Wise, 879 S.W.2d 494, 503 (Mo. banc 1994).
During the investigation, the police learned that the pawn tickets were for jewelry owned by Cheri Johnson, and they used the photo receipts to recover photographs from the CPI lab. Simmons contends that the police violated his Fourth Amendment right to be free from unreasonable searches and seizures both when they seized the pawn tickets and photo receipts and later when they seized the jewelry and photographs. The seizure of the pawn tickets and photo receipts was part of a legitimate inventory search, despite Simmons' assertion that the police were merely rummaging through his wallet. To succeed on his challenge of the seizure of the jewelry and photographs, Simmons has the burden of showing standing through an expectation of privacy in the items seized. Id. at 504. Nevertheless, Simmons does not even attempt to identify any privacy interest in the evidence that was obtained from either the pawn tickets or the CPI receipts. Obviously, Simmons had no expectation of privacy in the premises of the photo development business; but more importantly, he relinquished any right of privacy he had in the photographs or negatives themselves by giving them to the developer. See State v. Urban, 798 S.W.2d 507, 514-15 (Mo.App.1990). In doing so, he assumed the risk that the photographs might be shown to others, even the authorities. Id. at 515. As to the pawn tickets, we are at a total loss to discern any expectation of privacy on the part of Simmons in stolen jewelry located in a public pawn shop. In sum, the trial court properly denied the motion to suppress and allowed admission of the evidence at trial.
Simmons asserts that the prosecutor made several improper, objectionable statements during voir dire. However, Simmons objected to only one of these statements, when the prosecutor said that the jurors would make a punishment "recommendation" to the judge. Citing Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 2639-40, 86 L.Ed.2d 231 (1985), he suggests that the comment "impermissibly led the jury to believe the responsibility for determining the appropriateness of [the] sentence lay elsewhere." This Court, however, has repeatedly rejected this same argument. Antwine v. State, 791 S.W.2d 403, 410 (Mo. banc 1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d 789 (1991); State v. Roberts, 709 S.W.2d 857, 868-69 (Mo. banc 1986), cert. denied, 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378 (1986). The point has no merit.
We need not consider the merits of the remainder of the allegedly improper comments. Having reviewed the entire record, we find that no manifest injustice or miscarriage of justice resulted from those comments even if they were improper and, therefore, we have no discretion to grant plain error relief. See Rule 30.20.
One venireperson, an African-American woman, was removed from the jury by the prosecutor's peremptory strike. Simmons alleges that this removal was race-based, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). If the defendant wishes to challenge a prosecutor's peremptory strike, he must first raise the challenge by identifying the cognizable racial group to which the stricken venireperson belongs. The trial court will then require the State to proffer a reasonably specific and race-neutral reason for striking the venireperson....
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