Franz v. State, No. CR

CourtSupreme Court of Arkansas
Writing for the CourtDUDLEY; GLAZE; HAYS; GLAZE; HAYS
Citation754 S.W.2d 839,296 Ark. 181
PartiesRev. Louis J. FRANZ, Individually and as Next Friend of Ronald Gene Simmons, Petitioner, v. STATE of Arkansas, Respondent. 88-76.
Decision Date11 July 1988
Docket NumberNo. CR

Page 839

754 S.W.2d 839
296 Ark. 181
Rev. Louis J. FRANZ, Individually and as Next Friend of
Ronald Gene Simmons, Petitioner,
v.
STATE of Arkansas, Respondent.
No. CR 88-76.
Supreme Court of Arkansas.
July 11, 1988.

Page 840

[296 Ark. 183] Mark Cambiano, Morrilton, for petitioner.

DUDLEY, Justice.

On May 16, 1988, Ronald Gene Simmons was convicted of capital murder and sentenced to death in the Circuit Court of Franklin County. Immediately after being sentenced, Simmons took the stand and made a statement that included the following: "I, Ronald Gene Simmons, Sr., want it to be known that it is my wish and my desire that absolutely no action by anybody be taken to appeal or in any way change this sentence. It is further respectfully requested that this sentence be carried out expeditiously." Even after the trial court set a date for execution, Simmons refused to exercise his unqualified right of appeal. The trial court subsequently conducted a hearing and found that Simmons was competent to waive his right to an appeal and that his decision on the waiver was knowingly and intelligently made. As the date for execution neared, Rev. Louis J. Franz petitioned this Court to allow him to proceed in this Court on Simmons' behalf as next friend, asked for a stay of execution, and asked that we make appeal mandatory in death cases. We granted a stay of execution, 751 S.W.2d 355, and asked the parties and the petitioner to file briefs on (1) whether the petitioner has standing; (2) whether this Court should change its rules to require mandatory review of death cases; (3) if there is no rule change to require mandatory review of death cases, whether a decision to waive appeal in a death case should be reviewed by this Court; and (4) if appeal may be waived, whether the defendant in this case [296 Ark. 184] understood the choice of life or death and knowingly and intelligently made that choice. Briefs have been received and oral arguments have been heard on the issues.

1. Standing of Rev. Franz

The requirements of next friend standing are twofold. See, e.g., Davis v. Austin, 492 F.Supp. 273 (N.D.Ga.1980). The Davis court noted, "The petitioners must first meet the threshold requirement of showing they are 'next friends.' If that showing is made, petitioners must also demonstrate that a 'next friend' suit is maintainable because the person on whose behalf they act is incompetent." Id. at 275.

As to the first requirement, the qualification as a next friend, the Davis court noted:

The case law does not establish an easily applied test as concerning the requirements for standing as "next friend." The cases establish that such actions may be appropriate in cases of infancy,

Page 841

lack of time, and incompetency. United States v. Preiser, 506 F.2d 1115, 1126 n. 8 (2d Cir.1974). Although the relationship and interest of the proposed "next friend" is to be considered by the court before it entertains such an action, the cases do not adequately define who might act as next friend. See Weber v. Garza, 570 F.2d 511 (5th Cir.1978). The court must start with the proposition that members of the public in general do not have a right to intercede as "next friend" in an action such as this because they are morally or philosophically opposed to the death penalty. On the other end of the scale, close relatives, such as a parent, spouse, or sibling, who maintain a close personal relationship with the aggrieved, would be appropriate persons to maintain a "next friend" action.

Davis, 492 F.Supp. at 275.

The facts of the Davis case are similar to the facts in this case. One of the persons seeking "next friend" status in Davis was the Rev. Murphy Davis. The court noted:

The testimony shows that Reverend Davis is an ordained Presbyterian minister and Director of the Southern Prison Ministry of Georgia. She is philosophically opposed to [296 Ark. 185] capital punishment. Reverend Davis has had some personal contact with [the defendant] over approximately one and a half years and has counseled with him on occasion. The evidence does not demonstrate that she is in any way his personal minister or religious adviser.

Id. The court held, "Although the court has no doubt as to the deep sincerity of Reverend Davis' convictions, her connection with [the defendant] is that of a concerned minister who has made herself available to assist him. Such a relationship is insufficient to confer upon her status as 'next friend.' " Id. at 275-76. The court then went on to quote Justice Rehnquist's concern expressed in an opinion written in the capacity of Circuit Justice: "[H]owever worthy and high minded the motives of 'next friends' may be, they inevitably run the risk of making the actual defendant a pawn to be manipulated on a chessboard larger than his own case." Lenhard v. Wolff, 443 U.S. 1306, 1312, 100 S.Ct. 3, 6, 61 L.Ed.2d 885, stay of execution denied, 444 U.S. 807, 100 S.Ct. 29, 62 L.Ed.2d 20 (1979), quoted in Davis, 492 F.Supp. at 276.

Rev. Franz's connection to Simmons is even more tenuous than the one in Davis. According to his petition, Rev. Franz is a Catholic priest who counsels inmates at the Arkansas Department of Correction. There is nothing in his petition to indicate that he is Simmons's minister, spiritual adviser, or confidant, or even less, that the two have ever met. We hold that Rev. Franz has failed to allege any facts to show that his relationship to Simmons is sufficiently close to give rise to next friend status, and we therefore cannot grant him standing on this basis.

Rev. Franz alternatively argues that even if he does not have standing as next friend, he has standing as a taxpayer under article 16, section 13 of the Constitution of Arkansas, the illegal exaction provision. The argument is without merit for at least two reasons. First, a suit to prevent an illegal exaction must be commenced in a trial court. Such a suit cannot be commenced in this appellate court. Second, the constitutional provision is not so broad that it gives one taxpayer the right to intervene in the merits of a criminal case against another person.

Rev. Franz's last alternative argument is that if he is not granted standing in this case then important legal issues will [296 Ark. 186] go unresolved at the appellate level. Even though this is true, it is not sufficient to give petitioner standing. In Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), the Supreme Court of the United States terminated Gary Gilmore's stay of execution at his request. At the time, the constitutionality of the Utah death penalty statute had not been reviewed by either the Utah Supreme Court or the Supreme Court of the United States. Justice White noted in his dissent (which was joined by Justices Brennan and Marshall) that "there are substantial questions under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), about the

Page 842

constitutionality of the Utah death penalty statute. Because of Gary Gilmore's purported waiver of his right to challenge the statute, none of these questions was resolved in the Utah courts." Gilmore, 429 U.S. at 1017-18, 97 S.Ct. at 439 (White, J., dissenting). Justice Blackmun also noted that the constitutional question was "not insubstantial." Id. at 1020, 97 S.Ct. at 440 (Blackmun, J., dissenting). Chief Justice Burger (joined by Justice Powell) was unconcerned, noting, "Gilmore has not challenged the validity of the statute under which he was convicted, and there is no other party before this Court with requisite standing to do so." Id. at 1017 n. 7, 97 S.Ct. at 439 n. 7 (Burger, C.J., concurring). The existence of the question was not sufficient to give a third person standing, and, therefore, the question went unresolved at the appellate level. Accordingly, we reject Rev. Franz's attempt to gain standing simply because of the existence of important legal issues which remain unresolved at the appellate level.

2. Mandatory Review

However, as has often been noted, "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice." Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). Because of the punishment's uniqueness and irreversibility, we choose to state clearly the law in Arkansas regarding the waiver of appeal in death cases.

The threshhold question is whether an appeal is mandatory in cases involving a death sentence. We have said that it is not: "[T]here is no mandatory appellate review in Arkansas." Collins v. State, 261 Ark. 195, 211, 548 S.W.2d 106, 115, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).

The next question is whether the lack of mandatory [296 Ark. 187] appeal renders our law unconstitutional. We have held that it does not:

It is urged, however, that our system does not meet Gregg-Proffitt-Jurek standards necessary to avoid Eighth and Fourteenth Amendment prohibitions for lack of a mandatory appeal of a judgment imposing the death penalty and of appellate review which compares cases in which the death penalty has been imposed. [This is a reference to the standards set out in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).]

We find nothing in any opinion, and certainly no majority, which supports a holding that there must be either a mandatory or automatic appeal of a judgment imposing the death penalty or that there must be appellate review which compares cases in which the death penalty has been imposed....

... It seems to us that the only actual requirement, even of the Stewart plurality, is that a meaningful appellate review is available to insure that death penalties are not arbitrarily, capriciously or freakishly imposed. The important question is whether the system creates a substantial risk...

To continue reading

Request your trial
62 practice notes
  • State v. Dodd, No. 57414-6
    • United States
    • United States State Supreme Court of Washington
    • October 8, 1992
    ...Arkansas's sentencing scheme makes review available, but a defendant may decline review. 8 Franz v. State, 296 Page 19 Ark. 181, 188-89, 754 S.W.2d 839, 843 (1988). If he does so, the trial court determines whether the defendant is competent to waive his right of review, the State Supreme C......
  • Whitmore v. Arkansas, No. 88-7146
    • United States
    • United States Supreme Court
    • April 24, 1990
    ...any way change this sentence. It is further respectfully requested that this sentence be carried out expeditiously.' " See Franz v. State, 296 Ark. 181, 183, 754 S.W.2d 839, 840 (1988). The trial court conducted a hearing concerning Simmons' competence to waive further proceedings, and conc......
  • Pickens v. Lockhart, No. PB-C-91-331.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • September 2, 1992
    ...penalty from being carried out, even though it was against the wishes of the convicted man. The state was referring to Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) in which Father Franz, as next friend, tried to appeal the death sentence of Ronald Gene Simmons after Simmons waived hi......
  • State v. Brewer, Nos. CR-88-0308-A
    • United States
    • Supreme Court of Arizona
    • January 28, 1992
    ...495 U.S. at 153-154, 110 S.Ct. at 1722, but Arkansas statutes do not provide for automatic appeal of death sentences, Franz v. State, 296 Ark. 181, 196-97, 754 S.W.2d 839, 847 (1988) (Glaze, J., concurring and 4 Contrary to the State's assertions, Dawson does not speak to the issue of wheth......
  • Request a trial to view additional results
62 cases
  • State v. Dodd, No. 57414-6
    • United States
    • United States State Supreme Court of Washington
    • October 8, 1992
    ...Arkansas's sentencing scheme makes review available, but a defendant may decline review. 8 Franz v. State, 296 Page 19 Ark. 181, 188-89, 754 S.W.2d 839, 843 (1988). If he does so, the trial court determines whether the defendant is competent to waive his right of review, the State Supreme C......
  • Whitmore v. Arkansas, No. 88-7146
    • United States
    • United States Supreme Court
    • April 24, 1990
    ...any way change this sentence. It is further respectfully requested that this sentence be carried out expeditiously.' " See Franz v. State, 296 Ark. 181, 183, 754 S.W.2d 839, 840 (1988). The trial court conducted a hearing concerning Simmons' competence to waive further proceedings, and conc......
  • Pickens v. Lockhart, No. PB-C-91-331.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • September 2, 1992
    ...penalty from being carried out, even though it was against the wishes of the convicted man. The state was referring to Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) in which Father Franz, as next friend, tried to appeal the death sentence of Ronald Gene Simmons after Simmons waived hi......
  • State v. Brewer, Nos. CR-88-0308-A
    • United States
    • Supreme Court of Arizona
    • January 28, 1992
    ...495 U.S. at 153-154, 110 S.Ct. at 1722, but Arkansas statutes do not provide for automatic appeal of death sentences, Franz v. State, 296 Ark. 181, 196-97, 754 S.W.2d 839, 847 (1988) (Glaze, J., concurring and 4 Contrary to the State's assertions, Dawson does not speak to the issue of wheth......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT